A Model Definition of the Practice of Law: If Not Now, When? An Alternative Approach To Defining the Practice of Law
Turfler, Soha F
Access to legal guidance is extremely important in American society. All persons are subject to the law-the law creates individual rights and responsibilities affecting many aspects of social and personal life.1 The law protects and the law punishes-it is the main avenue through which justice and freedom are secured.2 Ignorance of the law is often no excuse-individuals are expected to know the law and to understand their legal rights and obligations.3
Yet the law is also increasingly diverse and complex, and for many individuals it is extremely difficult to navigate through the legal web that surrounds their lives.4 The lawyer or attorney traditionally has fulfilled the role of gatekeeper and guide to the web of law.5 Yet many low- and middle-income Americans do not have access to an attorney because they lack adequate amounts of disposable income.6 Consequently, various reforms have sought to provide wider access to legal assistance. For example, legal aid programs hold the potential to address the needs of some lower income individuals, but many other individuals are still denied access to legal guidance.7 Therefore, many of these individuals attempt to ignore legal problems when they arise, or they may seek to redress these problems through the use of self-help.8 In a society where knowledge and access to the law is so important, the legal needs of many individuals remain unmet.9
This problem is serious and requires a solution. Much of the reform debate attempting to address inadequate access to legal guidance in past years has focused primarily on restructuring the delivery of services in the legal services market.10 For example, the public’s legal needs traditionally have been met by locally regulated and operating attorneys practicing alone or in small firms.11 Bans on multidisciplinary practice (MDP),12 multijurisdictional practice (MJP),13 and the unauthorized practice of law (UPL) supported this traditional provision of services.14 However, society and governing law have changed drastically since this tradition emerged. The traditional figure of the locally operating attorney is being replaced by large firms with multistate and multinational branches.15 Many of the services that lawyers traditionally provided are being encroached upon by nonlawyers and information technology.16 Traditional notions of MDP, MJP, and UPL likewise demand reassessment, and much scholarly debate has concerned the need to reconceptualize the legal services market.17 Underlying these debates is the notion that the delivery of legal services necessarily involves the regulation of the practice of law.18 The notion is that the practice of law-the delivery of certain legal services-requires state regulation to protect the public from incompetent providers. Yet there is no clear consensus on what is meant by the “practice of law.”19 Some reformers recognize the need for a definition of the practice of law. Attempts to formulate a definition, however, largely have been met by failure.20 This Note contends that the legal community should formulate a model definition of the practice of law to address the many issues arising from restructuring the legal services market. Ultimately, a model definition is needed to help remedy problems with access to law and justice in modern American society. When the practice of law has been defined adequately, it will be easier to develop and determine better and more efficient ways of providing legal services to the public. Furthermore, lawyers, by taking the initiative and defining the practice of law, can improve the image of the legal profession in the eyes of the public.21 This Note posits that the definition of the practice of law, although often shrugged off as unnecessary or unachievable, actually plays a vital role in the legal services market. Furthermore, if the legal profession is unwilling to formulate a definition, the profession may find itself stripped of much of its current authority over the legal services market. This Note also contends that the prior approach taken in defining the practice of law is inefficient and is contributing to the difficulty of formulating a model definition. Therefore, this Note presents an alternative approach for defining what constitutes the practice of law.
Part II of this Note addresses the need for a definition of the practice of law and examines the debate over UPL in order to demonstrate how the definition of the practice of law can affect the legal services market. Part III discusses the need for the legal community to formulate a model definition and examines a recent effort by the American Bar Association towards this end. Part IV discusses a conceptual approach frequently taken in defining the practice of law and instead proposes an alternative method and perspective.
II. The Need for a Definition of the Practice of Law
The practice of law has often been approached through an “I know it when I see it” attitude; courts and critics frequently express the sentiment that the practice of law is impossible to define.22 There is, however, a definite need for a clear definition of the practice of law. The primary importance of the definition is that it interacts with prohibitions against the unauthorized practice of law to establish what activities or legal services the state will regulate.23 In other words, the definitions of the practice of law and the unauthorized practice of law determine who can provide what legal services to the public.24
Thus, the definition of the practice of law has an almost symbiotic relationship with the unauthorized practice of law. In order to understand the relationship between the practice of law and the unauthorized practice of law, it is useful to conceptualize the practice of law as encompassing a particular sphere of legal services or activities. Every service falling inside the sphere is considered the practice of law; any activity falling outside of the sphere is not considered the practice of law.25 When someone not authorized to practice law provides services falling within that sphere, that person is liable for the unauthorized practice of law. Likewise, a person cannot be liable for the unauthorized practice of law when performing a service falling outside of the sphere because he or she has not “practiced” law by performing that activity.
The two concepts of the practice of law and the unauthorized practice of law are so interrelated that the fine distinction between them can be easily misunderstood. However, the two concepts are in fact different. The definition of the practice of law involves what activities are considered to be within the sphere, whereas the concept of unauthorized practice has to do with who may perform the services falling within that sphere.26 Thus, the practice of law operates to determine which legal services will be regulated by the state, and the prohibition against unauthorized practice of law determines who may perform those regulated services. This sphere may encompass a broad or narrow swath of activities, resulting in either many or few regulated services. If the definition of the practice of law covers a broad amount of activity, then exceptions will probably be carved into the sphere, which will shield particular service providers from liability for providing certain legal services.27
The definitions of the practice of law and the unauthorized practice of law can have a profound effect on how legal services are provided to the public. By working with the ban on unauthorized practice to determine who can provide what services, the definition of the practice of law directly influences competition in the legal services market, which in turn has great influence upon the price of legal services.28 The price of those services then directly affects who is able to afford legal services, and consequently controls access to legal guidance.29
In order to fully understand the relationship between the definition of the practice of law and the legal services market, it is useful to understand some of the reasoning behind recent debates regarding reform of the legal services market. The following sections present a summary of the debates behind MDP, MJP, and UPL in order to illustrate how these reforms can influence access to justice and to demonstrate how the definition of the practice of law relates to those debates. Incidentally, the unauthorized practice of law is often understood to refer to what legal services a nonlawyer may or may not legally offer to the public. Unauthorized practice rules, however, refer not only to what services a nonlawyer may provide, but also to what services a lawyer may provide to the public in any given jurisdiction.30 MJP encompasses the latter application of unauthorized practice, and this Note will refer to the former application by the designation UPL.
A. The Definition of the Practice of Law and Its Role in the Restructuring of the Legal Services Market
In recent years, the debates over MDP, MJP, and UPL all dealt with the restructuring of the legal services market, and each debate involved a reconceptualization and consideration of what it means to practice law.31 For example, MDPs are entities in which lawyers and nonlawyers partner together to provide comprehensive legal and nonlegal services to their clients.32 Client wants and needs often encompass both legal and nonlegal issues, and MDPs have the ability to offer services at lower prices because of lower transactional costs.33 However, there are serious objections to the use of MDPs, such as the fear of losing lawyers’ independent professional judgment.34 The definition of the practice of law is related to the MDP debate in many respects. For example, to the extent that nonlawyers may provide legal services in a MDP, they may engage in the unauthorized practice of law.35 The resolution of this issue brings up the question of exactly what activities fall within the definition of the practice of law.36
The definition of the practice of law is also important to the debate behind multijurisdictional practice, or MJP. The individual states have traditionally regulated lawyers, but the importance of state boundaries lessen as the ebb and flow of interstate transactions increases.37 MJP may lower the price of legal services by diminishing the need to retain local counsel when legal issues cross jurisdictional lines.38 On the other hand, the states have an interest in regulating the practice of law in their individual jurisdictions to ensure competence in the legal services market-an outside lawyer may not be familiar enough with local rules and procedures to give competent advice, and incompetent providers could harm unwary clients.39 The debate over MJP ultimately led to the new revision of Model Rule 5.5, which if adopted by the states, allows multijurisdictional practice on a “reasonably related” and “temporary” basis.40 Lawyers alternatively have the option of being admitted pro hoc vice,41 but this procedure does not cover transactional practice.42 Many of the transactions that lawyers provide in other jurisdictions may fall within the sphere of the practice of law, and to the extent that those services fall outside of the Model Rule or pro hoc vice exceptions, that lawyer engages in the unauthorized practice of law.43 A definition of the practice of law could clarify what services a nonlocal attorney could provide in a jurisdiction without liability for unauthorized practice.44
1. The Debate Behind UPL
The debate behind UPL provides the most conceptually direct application of the definition of the practice of law: The definition of the practice of law directly affects what services nonlawyers may offer to the public. Therefore, the definition has a direct effect on access to legal services. Rules banning the unauthorized practice of law shield lawyers from competition with nonlawyers in the delivery of all legal services considered to constitute the practice of law.45 The resulting “legal monopoly” allows for uncompetitive prices, and as the costs of legal services rise, less affluent individuals are pushed out of the market.46 Practitioners justify this legal monopoly by arguing that it protects the public from incompetent providers.47 Critics attack the legal monopoly as protecting lawyers’ self-interest and maintaining lawyers’ incomes.48
The following three sections present a brief discussion of three differing views on the possible scope of the definition of the practice of law. A broad definition enlarges the sphere of regulated activities to encompass most, if not all, of the legal services market.49 A narrow definition narrows the sphere so that the practice of law is restricted and encompasses only some legal services.50 The case for the repeal of UPL presents a situation where the definition of the practice of law is no longer of any special relevance-there is no difference between services found within the sphere and those found outside it because any willing provider can provide legal services.51 Although this Note ultimately determines that a narrow definition would best serve the public’s interest, the other two views also have merit and raise some issues that should be considered when formulating a definition. The following sections attempt to present the merits of each competing view.
a. The Argument for a Broad Definition
The argument that rules defining the practice of law should be broad in scope has its basis in the need to protect the public.52 This need to regulate and restrict much of the legal services market is caused by imperfections found in that market.53 Two imperfections in particular characterize the rationale for the restriction of the legal services market.
The first imperfection is found in the heterogeneity of service providers.54 The arguments to ban nonlawyer providers from the marketplace are based on the belief that nonlawyers provide legal services of inferior quality and thus entail a greater risk of harm to consumers. Nonlawyers, lacking formal training in the law, will be unable to deal with or to recognize legal complexities when they arise, and clients’ legal interests will be harmed by their incompetence.55 The resulting harm from incompetent services is so severe that it should be avoided.56 Essentially, because nonlawyers are assumed to offer inferior services, a client will be more likely to be harmed when he or she receives legal services from a nonlawyer. This potential for harm should be avoided through regulation.
On the other hand, the inferior quality of nonlawyer services alone would not justify a complete ban on nonlawyer practice. If nonlawyers consistently gave inferior services, and clients were consistently harmed, then market forces would weed nonlawyer providers out of the market. Clients would not seek out inferior and damaging services for their legal needs, and nonlawyers would be unable to survive in the marketplace.57 However, another imperfection in the market for legal services prevents consumers from avoiding these risks and thus strengthens the argument for regulation.
A second imperfection found in the legal services market is one of information asymmetry-legal services consumers are unable to evaluate the quality of the services that they are seeking or that they have received.58 In any market there may be a difference between the amount of information that either the seller or the buyer possesses.59 For example, when a potential orange buyer enters the market for fruit, he or she will usually know less about the quality of the oranges than the purveyor of the fruit knows, such as the conditions under which the fruit was grown or the best types of growth conditions. In the legal services market, however, the assumption is that the asymmetry of information between a competent provider (a lawyer) and a potential consumer (a client) is so great that many consumers will be unable to evaluate the quality of services that they are seeking or even receive.60
The provision of legal services usually involves the application of specialized knowledge to a particular set of facts,61 and the legal services consumer is seeking services precisely because he or she lacks the required information to make a decision about his or her legal rights.62 This unsophisticated potential legal services consumer may be unable to evaluate his or her legal needs and to assess when he or she requires the assistance of an attorney.63 The asymmetry of information may be so great, in fact, that in some cases a client will be unable to evaluate the quality of the service that he or she receives. For example, the quality of legal service may not bear a strong relationship to the ultimate result-even the highest quality legal defense may still result in a loss.64 Because legal services are believed to be particularly sophisticated and complex, many clients will not be able to evaluate the quality of the services they need or receive and therefore will be unable to avoid harmful providers.65
These two imperfections underlie the justification for regulating and licensing many markets, including the market for legal services.66 If these imperfections are found in the market for any good or service, then it might be in the public interest to assure a minimum level of quality through regulation in order to prevent consumer harm.67 Regulation must do for the consumer what the consumer is unable to do for himself-evaluate quality and avoid harm.
Regulation of the legal services market may take many forms, but two forms in particular are certification and licensing.68 Certification seeks to designate providers who possess certain qualifications. Under a certification regime qualified practitioners are “flagged” so that consumers may recognize that the practitioner can provide at least a minimum quality of service, but noncertified providers are not barred from offering their services in the marketplace. Therefore, certification gives consumers the choice between paying for certified or noncertified services. Consumers are also given some guidance in the assessment of quality. Under a licensing regime, only licensed providers are permitted to offer services in the marketplace.70 Bars against unauthorized practice forbid an unlicensed person from offering his or her services in the marketplace. By forbidding any unlicensed individual from providing services, licensing restricts competition in favor of licensed individuals.71
There is a correlation between the severity of market imperfections and the extent of regulation required: The more extreme the potential for consumer harm and the more extreme the gap between buyer and seller information, the stronger the case for a stringent regulatory scheme.72 The argument for a broad definition of the practice of law contends that the imperfections in the legal services market are so extreme that it would be in the best interests of legal services consumers and the public that all practitioners be licensed.73 Under a broad definition of the practice of law, only lawyers will be able to provide most, if not all, legal services.
The use of an attorney assures a minimum level of competence. An attorney almost always has three years of legal education and training at an accredited law school, has passed a bar examination, and often has met continuing legal education requirements.74 The training and testing of attorneys assure consumers of intellectually competent services.75 Consumers also are assured ethically competent services. Bar applicants are often subject to character and fitness requirements, and attorneys are bound by rules of professional conduct providing for various duties of loyalty to the client.76
With a nonlawyer provider there are no such competency assurances, and because legal service consumers will often be unable to evaluate quality, nonlawyer providers will have the opportunity to cut corners or perpetrate fraud.77 Even if a nonlawyer attempts to provide high quality services, nonlawyers often will be unable to deal effectively with the intricacies of the law. For example, nonlawyers do not have the extensive legal background that lawyers have, and they often offer a very specialized, narrow service to the market.78 Therefore, nonlawyers may not be able to recognize potential legal issues and will not have enough legal savvy to refer the consumer to a competent provider in order to deal with those issues.
In essence, this theory argues that the cost society pays by restricting competition through licensing is worth the assurance of quality that licensing brings.79 Rules of unauthorized practice of law are part of the bargain that society struck by providing lawyers a monopoly in return for the assurance of high quality services.80 These rules “help to protect the public from charlatans, incompetents, and over-eager, first-year law students.”81
Beyond the public protection basis for restricting the delivery of legal services to licensed attorneys, there is also a public perception argument that may justify a broad definition. This argument is based on the paradigm of professionalism-the belief that the practice of law is a profession and not a mere business.82 Viewing the provision of legal services as a profession, a public calling of which the primary purpose is to benefit and protect society, rather than as a mere business that places personal gain at the forefront, makes law practice seem like an honorable undertaking. Subjecting the legal services market to capitalist forces breeds mistrust in the law and in lawyers.83 When the public views the provision of legal services as honorable, this in turn breeds respect for the law, which then promotes social order.84 Requiring a minimum level of competence in the legal services market promotes respect for the law, as “incompetent legal aids tends to reduce public confidence in the political system and might increase political unrest.”85 In order to promote respect for the law and general societal good, the definition of the practice of law should be broad enough in scope to restrict most of the legal services market to lawyers.
b. The Argument for a Free Market
Although promoting public safety and protecting social order are noble undertakings, these arguments are not seen as very realistic. The argument for the repeal of unauthorized practice of law rules undercuts the assumptions supporting the argument for a broad definition and instead places all its reliance on the operation of the free market. One does not have to look very hard to see that many Americans dislike and distrust lawyers.86 Lawyers are viewed as playing an unnecessary role in many routine legal matters.87 Clearly the attempts to restrict the legal services market and the insistence that the law is a profession have failed to promote respect for lawyers or the legal system.88 Lawyers are instead seen as manipulating unauthorized practice of law rules to ensure their own economic gain under the guise of public protection.89
There may be many factors contributing to the decline of lawyers in public perception. However, this decline is connected with the failure of the professional paradigm itself. The professional paradigm envisions the lawyer as protector of society, as champion of the poor.90 By allowing lawyers to dominate the legal services market, society entered into a bargain with the legal profession-in exchange for its monopoly, the profession should provide the public with high quality service that is both intellectually and ethically competent.91
Many critics argue that lawyers have not been holding up their side of the bargain. Consumers are no longer ensured intellectually competent services through the use of an attorney. Numerous problems with American legal education cast doubt on the ability of law schools to adequately train law students for day-to-day practice.92 Bar examinations often serve merely as a screening device, as “[i]n most states, passage requires only minimal writing capacity, knowledge of basic legal principles, and an ability to function under extreme time pressure.”93 Some scholars suggest that continuing legal education does not and cannot assure competence.94 Regulatory requirements for legal education are out of tune with the legal environment and can no longer ensure intellectual competence.
Critics also suggest that consumers are no longer ensured ethically competent services by an attorney. For example, professional irresponsibility is often seen as going unpunished, as regulatory bodies lack either the resources or the incentive to punish violations.95 Advocacy and justice are skewed because only well-financed interests are well represented.96 More lawyers are treating their profession as a business, seeking to maximize profits, and catering their services only to those who can afford it.97 The legal monopoly allows lawyers to set uncompetitive prices, and as a result, consumers are forced to seek assistance from an attorney or, more frequently, receive no legal assistance at all.98 In short, the Professional Paradigm has failed.” The general public is no longer receiving quality legal services and access to justice. The law has become a business, and as such it should be regulated like a business and subject to free market forces.
Many scholars believe that the two concerns underlying the argument for a broad definition could be adequately addressed under a free market. In response to quality concerns, critics point out that attempts to mandate a minimum level of service ignore those consumers who would be willing to face higher risks in return for lower costs.100 Furthermore, by driving up prices and forcing many consumers to seek self-help, licensing may actually reduce the overall quality of service received by the public.101
Many critics also believe that a general background in law achieved through bar admittance is not necessarily an assurance of high quality service. Studies and experience strongly suggest that consumers are not at a significantly greater risk of harm when they receive their legal services from a lay provider rather than an attorney.102 Subjecting all legal service providers to minimum intellectual and ethical competence requirements, such as malpractice liability, may minimize any risk posed by nonlawyer services.103
As to information asymmetry problems, the quality of legal services should be no more difficult to evaluate than any other market evaluation, and gaps in information are steadily decreasing.104 The argument for a free market proposes that any information asymmetry concerns could instead be addressed through certification.105 Consumers would be able to recognize a superior service provider through a regime of certification, and providers would have an incentive to comply with certification requirements in order to gain a competitive advantage in the marketplace.106 At the same time, uncertified providers also would be able to participate in the marketplace, and consumers who are willing to chance the risks of low quality service would have an avenue for legal assistance.107 The free market model thus presents an attractive alternative to the expansive and expensive broad definition.
c. The Argument for a Narrow Definition
The argument for a narrow definition of the practice of law recognizes and addresses some of the weaknesses and strengths of both the argument for a broad definition and the argument for the repeal of the unauthorized practice of law. Under a narrow definition of the practice of law, service providers would only be deemed to be practicing law when providing select legal services. The definition would be narrowed substantially to allow for nonlawyer provision in many services traditionally considered to be the exclusive province of licensed attorneys, but certain services would still be regulated and restrained.
A narrow definition recognizes that the underlying premises of the argument for a broad definition have some merit and are generally true in the provision of some, but not all, legal services. A narrow definition also recognizes that, although the free market model can address some of these public protection concerns, the market may not always provide the best framework for regulating the practice of law. For example, the potential risk of harm created by incompetent service in some legal services, such as criminal defense, is so severe that it becomes necessary to provide an assurance of competence.108 Furthermore, although the increasing complexity of law calls for increased specialization, a general background is often essential to competent service because many legal problems do not fit easily into discrete categories-a legal provider needs to be able to recognize extrinsic issues when they arise.109 Although the benefits of increased competition in the marketplace are certainly worthwhile, some sort of limiting device is needed to address these potential consumer harms.
The free market model suggests that an alternative regulatory regime is certification, in which competence is used primarily as a marketing device.110 Certified providers would have to comply with minimum quality requirements in order to retain their certification, but all other providers would not have to comply. Minimum levels of competence in noncertified providers would have to be assured through other types of regulation. Therefore, the free market model also suggests that subjecting all legal providers to intellectual and ethical competence qualifications, and providing a consumer remedy for violation of those qualifications, might curtail potential harmful behavior.111 However, the process of subjecting all providers to minimum entry requirements does not significantly differ from the licensing regime already in place, and the costs of compliance with these requirements would be reflected in the price of services.112 Malpractice liability, if taken seriously, also drives up prices and, at the very least, lowers the minimum quality assured in the marketplace.113 It appears that the only way the free market model truly will reflect market prices is if minimum competence requirements and potential liability for noncertified providers are largely discarded.114 In other words, the only way the free market model will work is if society stops trying to minimize risk.
One problem with leaving the market unregulated and allowing consumers to evaluate quality levels on their own is that information asymmetry does exist in some situations. Legal services are information and advocacy services-consumers would not seek legal assistance if they could adequately navigate through the law by themselves.115 The asymmetry of information between consumer and provider in the legal services market sometimes can be quite high. For example, many legal services consumers do not use legal services frequently-they are one-time consumers, and therefore, might not have prior experience with which to compare the present service.116 The free market model suggests that the use of market information devices might address information asymmetry problems.117 But even if educational efforts are successful at increasing understanding of the legal services market, these efforts cannot solve all information asymmetry problems because no marketing device can change the unpredictable nature of legal services.118 Many consumers may not have the savvy to avoid an incompetent provider and may be unwittingly exposed to high risks.
Allowing legal services consumers to be exposed to high risks does not fit well within a society that idealizes equal justice for all.119 In the end, neither the broad definition model nor the free market model appears to be in tune with the concept of equal justice. Under a broad definition, prices are driven up so high that many consumers can no longer afford access to justice. Under a free market model, there is no assurance of quality, and legal interests may be harmed. A narrow definition of the practice of law seeks to walk a middle path between these two models and the problems they present.120
Under a narrow definition, many of the benefits of a free market model would be realized. Competition for many legal services would be increased, leading to lower prices and increased access for the public.121 For example, many critics suggest that the definition of the practice of law could encompass complex or novel issues and leave routine services outside the definition of the practice of law.122 Nonlawyers would be allowed to provide so-called routine legal services, whereas licensing still would be required for complex services.123 By allowing nonlawyers to provide some legal services to the public, greater access to legal guidance could be achieved.
A narrow definition of the practice of law, opening up competition in much of the legal market while leaving a role for the traditional attorney, also could improve the public perception of lawyers and increase respect for the law.124 For instance, the increased access to legal services and increased knowledge of the law that will result as the services become more affordable to a larger segment of the public could promote a feeling of participation in the legal process.125 The legal monopoly would be confined to a smaller portion of the legal services market. However, lawyers still would have exclusive power over a portion of the legal services market and therefore still would enjoy status as a profession. The conception of lawyers as a profession also encourages lawyers to act in a professional, public-minding way.126 Furthermore, incompetently rendered legal services have a wider detrimental effect on society in general. Therefore, it might not always be wise to allow consumers to choose incompetent services.127
Many benefits could be achieved by defining the practice of law to include only a limited amount of legal services. As will be discussed, the services that eventually fall within the definition ideally would be those that entail a greater risk of harm.128 Thus the regulatory regime would still involve licensing, but the scope of restricted activities would be substantially narrowed to subject the legal services market to increased competition.129 The difficulty in formulating a narrow definition, however, is distinguishing those activities that should be restricted from those that should not. Producing the ideal definition of the practice of law therefore entails a fine balancing between affordability and assurance of quality.
B. The Practice of Law Is Worth Defining
The reasoning underlying the MDP, MJP, and the UPL debates illustrates the importance of the definition of the practice of law.130 The definition can alter how legal services are offered in the market, which in turn profoundly affects who can afford access to the legal services market. In other words, the definition of the practice of law affects the price of the legal services and access to justice.
For example, imagine that Wanda and William Woodhouse, a young middle-class couple living in Forest State, have a disabled child, Timothy, who attends Forest State Elementary.131 Forest Educational Services Corporation (FESC) is a nonprofit organization that provides advice, counseling, and advocacy services to families of children with disabilities. Martin Mahogany is a nonlawyer employee of FESC who possesses specialized knowledge and training in the field of special education. The Woodhouses utilize FESC’s counseling services frequently.
The Forest State Educational Board decided to make some changes to Timothy’s placement at Forest State Elementary, and the Woodhouses are unhappy with those changes. They are entitled to challenge the placement under the Forest State Children with Disabilities Education Act, which provides for several procedural safeguards, including the opportunity for an impartial due process hearing in front of the Forest Department of Education. The Woodhouses, suffering great financial burdens and seeking affordable representation, approach Mahogany and ask him to represent them during the hearing. Would Mahogany and FESC be liable for UPL if he represents the Woodhouses? What are the Woodhouses’ legal service alternatives if Mahogany is unable to represent them because of prohibitions against UPL? The answers to these questions largely depend upon Forest State’s definition of the practice of law.
For instance, assume Forest State determines that it is in the public interest to have a broad definition of the practice of law. Prior case law includes representation before an administrative tribunal within that definition. Mahogany will be subject to liability under Forest State’s unauthorized practice of law statute unless there is an explicit exemption for nonlawyer representation at a due process hearing before the Forest Department of Education generally, or for FESC-like providers particularly. Because Forest State’s practice of law definition and the Act as interpreted provide for no exception, Mahogany is unable to represent the Woodhouses. The Woodhouses, unable to afford the high cost of an attorney and ineligible for public legal assistance, will most likely be forced to proceed without legal guidance.
If, on the other hand, Forest State decides to repeal its unauthorized practice of law statute, then Mahogany will be able to represent the Woodhouses without fear of liability. Assume the worst-case scenario occurs, however, and the due process hearing results in an adverse decision. When the Woodhouses decide to appeal that decision to Forest State Court, Mahogany, unfamiliar with court procedure and unwilling to disclose his incompetence, neglects to file a necessary pleading. The Woodhouses’ claims are denied. If Forest State decides to impose intellectual and ethical competency requirements on all legal service providers, FESC’s prices will have to reflect the costs of its compliance with those minimum standards. As a result the Woodhouses may not be able to afford Mahogany’s services in the first place, even though the services are set at competitive prices.
Assume now that Forest State, wanting to introduce more competition into the legal services market, decides that the risks associated with a free market are not in the best interests of the public. Instead, Forest State adopts a narrow approach to its definition of the practice of law. Forest State determines that representation before an administrative tribunal does not fall within the definition of the practice of law but has determined that representation before the Forest State court falls within the definition. Thus, Mahogany can undertake the representation of the Woodhouses without fear of UPL liability. However, when it becomes apparent that the Woodhouses want to appeal their adverse decision to Forest State court, Mahogany has a strong incentive to refer the matter-Mahogany may be liable if he persists in representing the Woodhouses in state court. Increased competition in the legal services marketplace may lower the prices that many Forest State attorneys charge, and so the Woodhouses may be able to afford an attorney’s assistance. Even if the Woodhouses are not able to retain competent counsel, they will, at the very least, have whatever little guidance Mahogany is able to give them.
In reviewing these scenarios, it is apparent that the operation of the definition of the practice of law is very important in terms of access to legal guidance. Defining the practice of law may be a very difficult task, but the difficulty of the task in no way detracts from the need for it to be done.132 The task is not impossible, and as discussed below, a comprehensive definition of the practice of law is possible if approached from a perspective that avoids thinking about the issue in the abstract.133 Of course, there may be a question as to whether defining the practice of law is important enough to justify the effort in formulating a definition. This Note, however, argues that the definition of the practice of law is of sufficient value because of the profound effect it can have on the delivery of legal services. Access to legal guidance and, ultimately, access to justice are worthwhile endeavors.134 The practice of law, therefore, should be defined.
The importance of the definition of the practice of law, however, does not necessarily lead to the importance of a model definition of the practice of law. Lawyers, after all, are regulated by the states, and so it would seem to make sense to leave formulation of the definition to the individual states.135 There are other issues, however, that need to be addressed before lawyers shrug off this burden entirely to the states.
III. The Need for the Legal Community To Formulate a Model Definition
A. The Task Force’s Attempts To Formulate a Definition
The American Bar Association (ABA) recently appointed a Task Force to analyze the need for a model definition of the practice of law.136 The Task Force was challenged:
To determine the best approach for the Association to address whether to create a model definition of the practice of law that would support the goal of providing the public with better access to legal services, be in concert with governmental concerns about anticompetitive restraints, and provide a basis for effective enforcement of unauthorized practice of law statutes.137
Alfred P. Carlton, former president of the ABA, in testimony before the Federal Trade Commission, stated that:[A] threshold problem with the delivery of legal services [is]: What constitutes legal information as opposed to legal advice? Is the distinction that legal information can be provided by someone who is not a lawyer whereas legal advice requires the skill and judgment of someone who is admitted to practice law? I have appointed an ABA Presidential Task Force on the Model Definition of the Practice of Law to provide direction on this issue. I did so because of the fourway intersection. Where there is a collision of four issues: MDP, MJP, Access to Legal Services, and the Unauthorized Practice of Law. When we have properly defined the practice of law, we will be far better able to determine the unauthorized practice of law. This is particularly important with the delivery of legal services via the Internet because of the proliferation of entities that provide people with legal assistance online.138
The Task Force circulated a draft definition “with the goal of stimulating discussion” on September 18, 2002.139 The draft definition stated that the practice of law “is the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.”140 Several activities presumptively fell within the practice of law:
(1) Giving advice or counsel to persons as to their legal rights or responsibilities or to those of others; (2) Selecting, drafting, or completing legal documents or agreements that affect the legal rights of a person; (3) Representing a person before an adjudicative body, including, but not limited to, preparing or filing documents or conducting discovery; or (4) Negotiating legal rights or responsibilities on behalf of a person.141
The definition excluded several service providers from the overall definition of the practice of law.142 The definition also subjected any person practicing law to duties of care and loyalty, required disclosure for any nonlawyer providing services, and provided liability for the unauthorized practice of law.143
The Task Force received several comments on the definition from trade associations, scholars, lawyers, and the federal government.144 Many of these comments criticized the definition as overly broad and as creating strong anticompetitive effects.145 A public hearing on the definition was held on February 7, 2003, at which the Task Force heard statements from nineteen individuals both applauding and admonishing its efforts.146 Several speakers expressed the view that a definition of the practice of law was either impossible or not worth the effort.147
The ultimate recommendation of the Task Force, adopted by the ABA House of Delegates on August 11, 2003, abandoned the proposed draft definition and instead recommended that each state adopt a definition of the practice of law.148 The recommendation includes a “basic premise that the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity,” which excludes any mention of the provider’s skills.149 The background report to the recommendation expressly states that “[t]his basic premise is not a model for a definition, but rather a part of a framework.”150 The report then provides a procedural framework for the individual states to consider while creating their own unauthorized practice statutes-the framework deals with determining who should be authorized to practice law, not with determining what constitutes the practice of law.151 The report suggests that the individual states should consider the minimum qualifications, competence, and accountability of those who would be authorized to practice law.152 States should undertake studies of potential harm and should continually review the definition in order to “take into account changing market factors . . . with an eye to the future.”153
B. The Task Force’s Efforts in Perspective
The substance of the Task Force’s recommendation and background report is somewhat helpful. The broad premise that the practice of law is the application of judgment to the circumstances of another basically asserts that the practice of law is the giving of legal advice. This is tantamount to saying that the practice of law is a professional service.154 Of course, understanding that legal professionals practice law is a useful, if somewhat obvious, starting point.155 The factors provided for determining the unauthorized practice of law are also useful as a basis for determining the proper scope of the definition.156 However, the actual procedure the Task Force followed-a procedure consisting primarily of reflection and consultation-provides a more helpful framework for developing a model definition. As will be discussed below, the procedure also demonstrates one of the reasons why the legal professional community needs to formulate a definition of the practice of law.157
Although the Task Force was criticized as trying to promote the legal monopoly and to protect lawyers’ self-interest, the Task Force should be commended for its efforts and for its decision not to attempt to promulgate an overly broad rule. The legal profession, however, is still left with the task of formulating an ultimate model definition. Some of the more important reasons for formulating a model definition will be briefly discussed below. These reasons include the diminishing role of jurisdictional boundaries,158 the legal profession’s need to justify its position in the eyes of the public,159 and the legal profession’s need to ensure its voice in the reform of the legal services market.160
C. The Diminishing Role of Jurisdictional Boundaries
As mentioned previously, the nature of traditional law practice has changed.161 The increasing complexity of law calls for increased specialization.162 Traditional ways of delivering legal services have also changed: Law practice is becoming more national in scope.163 Legal transactions and issues frequently cross state boundaries as commercial and personal mobility increases, and the regulation of law practice must begin to reflect these modern changes.164
Increasing use of the Internet and information technology provides an avenue for offering affordable and widespread legal services to the public.165 Internet services are not constrained by state lines and can potentially be accessed from any jurisdiction, making regulation of the practice of law over the Internet difficult.166 Lawyers and nonlawyers are potentially subject to inconsistent obligations based on inconsistent definitions of the practice of law, determining what legal services they may perform without fear of unauthorized practice liability.167 A unified vision of the definition of the practice of law would certainly assist in the development of nationalized services and would bring clarity to the growing “gray area” created by inconsistent rights and obligations.168
D. Legitimatizing the Profession’s Claims to Exclusive Knowledge and Power
The discussion of the debate underlying UPL mentioned how the public has lost faith in lawyers.169 The controversy surrounding State Bar v. Arizona Land Title and Trust Co.170 is illustrative of this public sentiment. In Arizona Land Title, the Arizona Supreme Court held that the practice of law was “those acts, whether performed in court or in the law office, which lawyers customarily have carried on from day to day,” including legal document preparation, legal advice, and adjudicative representation.171 Real estate agents were barred from practicing law, and in the ensuing backlash, Arizona citizens amended their state constitution to include the right of real estate agents to draft and complete contracts and other documents in real estate transactions.172
Although the public generally has a negative view of lawyers as a group, members of the public do trust individual lawyers to a large extent and will frequently seek a lawyer’s assistance.173 At the same time, the public believes that lawyers play an unnecessary role in many routine legal transactions.174 This contradiction might be explained by understanding that the public will accept lawyers’ claims to superior knowledge and skill, and therefore the exclusive authority or power to act, in many situations. The Arizona experience shows, however, that the public does not see lawyers’ claims to exclusive authority as legitimate in all situations.175 Thus, lawyers’ claims to exclusive authority will be accepted by the public as legitimate in certain situations and in a certain realm of activities, such as complex transactions or representation before a court, but not in all situations, such as routine transactions or representation before an administrative agency.176 Lawyers’ claims to legitimate, exclusive authority will grow weaker as those claims encompass more activities over which the public believes lawyers lack superior knowledge and skill.
The activities in which lawyers claim to have exclusive authority are those activities that fall within the sphere of the practice of law. When a certain activity is considered to be the practice of law, unauthorized practice of law rules create a legal monopoly over that activity.177 Lawyers therefore claim exclusive authority over that activity.178 If the definition of the practice of law encompasses virtually any type of legal service, then the definition will include many services to which lawyers have weak claims of legitimate authority. The public is encouraged to distrust lawyers when lawyers are seen as overreaching, and it begins to question the legal monopoly, especially when the needs for legal services of many are unmet.179 Nonlawyers successfully providing many of the services falling within the definition makes that overreaching even clearer in the eyes of the public, and this further weakens the legal profession’s claims to exclusive authority to act.
For example, suppose that it is determined to be in the public’s interest to limit all title searches to lawyers. Once title searching falls within the definition of the practice of law, lawyers have exclusive power in all title searches, and nonlawyers are forbidden from performing title searches. Most of the general public, however, does not believe that only lawyers are qualified to perform title searches. Nonlawyers are believed to be equally able to perform title searches. The public therefore distrusts lawyers’ claims to exclusive authority in the area of title searches; the claim is not seen as legitimate. The public is further encouraged to distrust lawyers in general, especially when many individuals cannot afford title searches because of uncompetitive prices.
Clearly and narrowly defining the practice of law clarifies claims to legitimate authority, and a clear and narrow definition may, therefore improve the image of the profession in the eyes of the public. The public may be tempted to strip away some of lawyers’ claims if it feels the claims have gone too far, as demonstrated in Arizona.180 Much of the legal monopoly may be stripped away if lawyers continue to insist on exclusive authority in many activities to which they have weak, illegitimate claims. If the public is encouraged to distrust lawyers enough, then it may even strip lawyers of exclusive authority over those services which should be restricted and regulated in the public’s interest.181 By narrowing the definition and clarifying what activities are encompassed within lawyers’ exclusive authority, the legal profession’s image could be improved in the eyes of the public. The profession could be seen as relinquishing some of its overbroad claims to exclusive authority. Lawyers should re-evaluate what services the profession will claim as its exclusive province in light of public perception as well as public interest because:[T]he public will permit the cartel to exist, or go unregulated by itself, only if the public and its representatives, the government, perceive that “adequate” service is being provided at a “fair” price. Thus, one of the cartel’s problems is to convince the public and the government that the profession is indeed so providing and, moreover, that the self-regulatory organization, the cartel, is necessary and beneficial to the public.
The public will only accept lawyers’ monopoly over the legal services market if it believes the monopoly is necessary and beneficial to the public. Legitimatizing the legal profession’s claims to exclusive power in certain activities is therefore one very important reason for the legal profession to draft a model definition of the practice of law.
E. A Strong Voice: Lawyers’ Participation in the Formulation of a Definition
The legal profession may have to relinquish much of its legal monopoly in defining the practice of law. The need to restructure the delivery of legal services to increase access and the need to legitimatize the claims of the profession in the eyes of the public will probably warrant a narrow definition of the practice of law.183 Of course, this is a decision that should be made after considerable study and deliberation. This is another reason why the legal profession needs to articulate a model definition. Lawyers need to provide a model definition of the practice of law in order to ensure the legal profession’s voice in the discussion.184
Lawyers enjoy a large amount of autonomy in the regulation of their profession, and independence of professional judgment is highly valued in the professional community.185 The definition of the practice of law might profoundly affect the regulation of legal services.186 MDP, MJP, and UPL reforms all have potentially drastic effects on the amount and type of competition in the market, which in turn affects lawyers’ incomes.187 Lawyers should have a sincere interest in how the services they provide are delivered. If any reforms are to be made, then the legal community should want to have a voice in their making.188
Christine Parker, in her study on access to justice and the legal profession, conducted a survey that evaluated lawyers’ responses to structural reforms of the legal profession.189 The study demonstrated that lawyers are much more willing to cooperate with structural reforms of the legal profession when they feel they have a voice in the reform discussion, and Parker points out:
In the Australian case study, engaging the legal profession in dialogue proved effective in converting lawyers through debates where their view was heard, but where it was not necessarily the predominant one. Some lawyers were responsive to such dialogue simply to maintain legitimacy in the eyes of the community. Others opened their minds to the ideas of reformers and were persuaded by their merits. Yet voluntary change was most common where persuasive dialogue was accompanied by a perception of the inexorability of the reform process. For some, inexorability was about the power of commercial consumers to force competition. For others it was about the determination of reformers who had power in a climate of micro-economic reform to introduce change. Conversely, attempts to force change without dialogue produced unnecessary resistance to reform and entrenched conservatism among lawyers. When reformers seemed to assume that the profession had not and would not reform itself, or where reformers seemed to refuse to listen to lawyers’ perspectives on their own profession, lawyers experienced reform proposals as illegitimate insult. The apparent inexorability of reform became a goad to defiance and reactance.190
Lawyers are also in a unique position to assess the characteristics of various legal services and have experience in dealing with the intricacies of the law. Any reform that the definition of the practice of law may bring to the legal services market will benefit from professional views.191
Procedural strategies for formulating a definition of the practice of law similar to the Task Force’s deliberation and consultation provide an excellent forum for articulating lawyers’ concerns.192 The process of formulating a model definition would provide an excellent opportunity for consultation within the legal community as to what constitutes the practice of law, and a model definition would provide an example that could spark and guide debate in the individual states.193 Organizations such as the ABA have the potential of providing a strong voice in reform debates.194 Although any model definition would have to be adopted by the individual states to have any enforceability, a model definition-drafted by the legal profession to reflect the profession’s concerns-would at the very least promote a feeling of professional participation in the reform process. Ensuring lawyer participation in the reform debate is another reason why it would be in the best interest of the legal profession to formulate a model definition.
IV. Suggestions for a Model Definition
Defining the practice of law is admittedly a difficult task. The difficulty of producing a definition is increased, however, because attempts to define the practice of law often approached the task from the wrong perspective. Many definitions attempted to siphon off individual practice of law activities from the myriad stew of activities lawyers perform in their professional lives. This approach seeks to determine what exactly is the “essence” of being a lawyer.195 These definitions ask: What is it that a lawyer does that is the practice of law? How is the practice of law distinguished from all the many legal services lawyers provide? Once an activity falls within the definition of the practice of law, the approach seeks to determine whether a particular nonlawyer can competently perform the service. The Task Force’s report and recommendations reflect this approach-it seeks to determine the common theme underlying lawyers’ services.196 The report then provides a framework for evaluating who can provide legal advice and under what circumstances.197 This approach to defining the practice of law, which this Note will call the “lawyer-centered” perspective, is inefficient and produces arbitrary and vague results.
The lawyer-centered perspective assumes that a lawyer is needed to provide all legal services, except when the service is sufficiently innocuous that a nonlawyer could practice without posing an undue risk of harm.198 This perspective leads to an extremely inefficient conception of the practice of law. Each potential provider has to be judged and weighed in order to determine whether she is deemed competent to provide each legal service. This deliberate weighing of the costs and benefits of each service in relation to each provider is extremely inefficient. The varied and rapidly changing nature of legal services makes wholescale evaluation of the potential harm to the entire legal services market almost impossible.199 Alternative forms of delivery and alternative providers would each have to be evaluated whenever they arise, and innovation would be severely inhibited because these providers would each require authorization before they could legally enter the market. Under a lawyer-centered perspective, the best approach to defining the practice of law would probably be on a case-by-case basis, evaluating the risk of harm whenever that harm rears its ugly head.200 Under these circumstances, the definition of the practice of law is almost impossible to define.
A lawyer-centered approach also has the potential of creating extremely vague definitions. The lawyer-centered perspective attempts to abstractly determine what the essence of lawyering is. The perspective often admits that the practice of law does not encompass everything a lawyer does, but it is difficult to draw an abstract distinction.201 The result is a muddy “I do not know how to define it, but I know it when I see it” approach to the definition of the practice of law. There are many reasons that make a clear definition desirable. For example, a definition of the practice of law may possibly be struck down as unconstitutionally vague.202 The definition also needs to be clear enough to allow legal service providers to act without significant hesitation. If nonlawyers are allowed to provide legal services, then nonlawyers must know what services they can perform without fear of liability.203 A vague definition will make nonlawyers hesitant to participate in the legal marketplace, and any efficiency that comes from nonlawyer participation will be stymied.
Finally, any definition formulated from a lawyer-centered perspective has the potential of being extremely arbitrary. Consider, for example, the Task Force’s distinction that the essence of practicing law is legal advice.204 Almost any activity related in any small way to legal rights could fit within a legal advice definition. As long as a service is tailored to fit a particular situation, it involves legal advice and will constitute the practice of law.205 The provision of so-called legal information, as opposed to legal advice, is not the practice of law. After all, lawyers do not get paid by their clients for reciting the Uniform Commercial Code.
The distinction between legal advice and legal information is almost meaningless when discussing nonlawyer participation in the marketplace. To recall the example in Part II.B, the Woodhouses would not seek out Mahogany if all he could do is hand them a copy of Forest State Statutes at Large.206 At the very least Mahogany should hand the Woodhouses a copy of the Children with Disabilities Education Act. But by pointing the Woodhouses to a particular advantageous law, Mahogany just tailored his services to fit the Woodhouses’ situation and gave them legal advice.
Even if the lawyer-centered perspective takes a more realistic view of the legal services market, the legal advice distinction is still arbitrary. Court clerks, for example, are often accosted by the public with questions about their legal situation.207 Clerks, who are allowed to give out legal information but not legal advice, are cautioned against using the word “should” in their answer and instead provide information about what the litigant “can” do.208 Although the linguistic variation between what a person “can” do and what a person “should” do may mean a lot in legal terms, this fine distinction may be lost on unsophisticated litigants.209
The legal monopoly is unjustified in much of the legal services market. Requiring the use of a lawyer for many legal services is inefficient, expensive, and detrimental to access to justice.210 Subjecting the legal services market to free market forces, however, is also detrimental to access to justice.211 For reasons explored above, the assurance of competency in some legal services is important to safeguard the interests of the consumer and of society at large.212 There may also be important reasons for forbidding court clerks to dispense legal advice on important legal matters.213 However, the approach that has previously determined whether or not a clerk can provide legal advice, the lawyer-centered perspective, is not the best way to articulate or determine those reasons.
An alternative approach to defining the practice of law is an “activitycentered” perspective. Instead of focusing on whether licensed providers usually performed that activity, that is, whether that activity is inherent in what they do, the definition of the practice of law should focus on the activity itself. The activity-centered approach seeks to determine whether any particular activity should be licensed without regard to the performer’s ability.
The definition of the practice of law seeks to protect the public from incompetently rendered services by restricting the performance of that activity to licensed providers.214 By regulating licensed providers and restricting the activity to those providers, the state is indirectly regulating the activity itself.215 As such, when determining whether an activity should fit within the definition of the practice of law, the state should seek to determine whether that activity should be regulated; whether that activity should be licensed. The activity-centered approach asks a fundamental question-is the risk of harm of this activity severe enough to demand licensure? If the answer is yes, then the activity will fall within the definition of the practice of law. Unlike the lawyercentered approach, however, the activity-centered approach does not assume that a lawyer will be needed to provide most, if not all, services related to legal rights. Instead, the activity-centered approach assumes that a nonlawyer can provide all legal services, except when the service poses a severe risk of harm such that the activity should be restricted to licensed lawyers to minimize that harm.
Ideally, the activity-centered perspective should be empirically based. The approach considers a certain service, such as title searches. The activitycentered approach then takes into account the severity of the imperfections in the market for that particular service. First, the activity-centered approach asks: Is the risk of harm from incompetently rendered title searches such that it ought to be licensed? The risk of harm consists of both the potential harm to the consumer and the potential harm to society at large. For example, many risks are not without remedy, so it would be wise to open competition in these low-risk activities, while licensing high-risk or irremediable activities.216 Second, the activity-centered approach asks: Is the asymmetry of information and understanding between the client and the provider severe enough that a potential client could not appreciate the risk of harm? Some risks are comprehensible by clients, and many clients may wish to waive the assurance of competency in exchange for more affordable service. At the same time, however, a client may not always be able to appreciate the severity of the risk of harm,217 and so these nonwaiveable, “high-risk” services should be licensed in order to ensure competent service.
When evaluating court representation through an activity-centered approach, the risk of harm to the consumer and the risk of harm to society at large from incompetent service should be weighed. For example, the potential risk of harm to the consumer from incompetent court representation might be serious, resulting in a large judgment against a blameless client, and “[t]he intricacies of court procedure and trial tactics, essential to protect clients from serious harm, suggest the desirability of confining representation to skilled advocates.”218 Incompetent representation before a court also has larger implications for society, such as detrimental effects on efficient court operation.219 Furthermore, the information asymmetry found in the court context may be quite high. It is difficult to evaluate quality when the effects of incompetent representation are not necessarily apparent.220 Of course, these harms are largely assumed. The fact that the state does not provide civil lawyers and allows unsophisticated litigants to appear pro se cuts strongly against these assumed harms.221 An activity-centered approach should understand these assumed harms but should base its decision to license an activity on studies of the actual risk of harm to the consumer and to society at large. The Task Force’s identified factors for determining who should be able to provide services may also be useful as guideposts in structuring the evaluation of harm under an activity-centered approach.222
Many efficiencies flow from an activity-centered perspective. A definition formulated from this perspective has the potential of being drawn very narrowly and encompassing all the high-risk services, while opening up competition in the rest of the legal services market.223 An activity-centered definition also fosters innovation in creating alternative forms of legal service delivery and providers because the market would be open for many low-risk services. The process of formulating the definition of the practice of law is also more efficient under an activity-centered approach. Instead of forcing regulators to determine abstractly the essence of what a lawyer does and making regulators weigh the consequences of both activities and individual providers, an activity-centered approach only requires an evaluation of various legal activities. The definition of the practice of law will encompass those “high-risk” services-those services with sufficiently severe consequences or those services where the market could not trust clients to adequately waive potential risks.224
Any definition formulated through an activity-centered perspective also has the potential to avoid vagueness or arbitrariness concerns. By articulating exactly what activities nonlawyers cannot perform, the distinction between the practice of law and all other legal services is drawn clearly. Nonlawyers will clearly understand what services they can and cannot provide. An activitycentered definition could take on a laundry list form, listing activities considered to be the practice of law.225 Unlike a laundry list definition formulated through a lawyer-centered perspective, however, an activity-centered definition only lists “high-risk” activities, rather than activities considered to be what lawyers normally do when they are practicing law.
The activity-centered approach also provides the opportunity for the formulation of a definition with meaningful distinctions for lawyer and nonlawyer practice. By evaluating a legal service’s actual risk of harm, the activities that fall within the definition of the practice of law will be those activities in which it is truly in the public’s interest to restrict. The definition will also avoid arbitrary, primarily linguistic distinctions because the definition must focus on the underlying transaction of the service rather than on its appearance by evaluating the actual risk posed. The line will be clearly drawn and ideally will not reflect a fuzzy legal information or legal advice distinction. Furthermore, an activity-centered approach provides for meaningful nonlawyer participation in the marketplace. By allowing nonlawyers to perform “low-risk” services, services not restricted as the practice of law, nonlawyers will be able to offer many services to the public. Legal services consumers will utilize these services if they decide that any risk posed by a nonlawyer provider is personally acceptable. The activity-centered approach therefore can create a clear, meaningful, and efficient definition of the practice of law and provide a useful approach to the formulation of a model definition.
Access to legal guidance is a serious problem with which society must deal, and alternative forms of legal services delivery and providers present a solution to that problem. The process of restructuring the legal services market will most likely continue irrespective of whether a model definition of the practice of law is ever formed. Lawyers, however, should not sit by idly. Rather, they should ensure that a professional voice is heard in the debate over the restructuring of the market. The legal community should also consider an activity-centered perspective in its debate over the definition of the practice of law, as current forms of evaluating the practice of law are extremely inefficient.
The model definition should understand the benefits and the consequences that the alternative forms of legal service delivery entail and should truly protect the public. All lawyers should reassess their notions of the practice of law and of protection of the public. Whatever the ultimate consensus on the definition of the practice of law is, the correct balance between the public’s need for access to legal services and its need for protection must be struck. Access to justice is a problem that should not be ignored. The time has come to formulate a model definition of the practice of law: If the time is not now, then when?
Soha F. Turfler*
* Candidate for J.D., Washington and Lee University, May 2005; B.A. University of New Mexico, May 2002. I would like to thank all of my family and friends for their love and support. I would especially like to express my gratitude to my parents, Robert and Behin Turfler. Without their support I would have been unable to write this Note. My thanks also to Professor Bradley Wendel, Virginia Vance, Carter Williams, and the law review editorial staff for their invaluable assistance in completing this Note. This Note is dedicated to the memory of Maryam Venus, my grandmother.
Copyright Washington & Lee University, School of Law Fall 2004
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