At The Crossroads
Just as in real estate, the key to unlicensed practice of law enforcement appears to be location, location, location.
The results of a survey conducted by the ABA Standing Committee on Client Protection suggest a patchwork at the state level of UPL enforcement priorities, definitions for unlicensed practice of law, funding to support those efforts, regulatory structures to carry them out and sanctions for violations.
Nearly two thirds of the 36 UPL committees from state bars that responded to the ABA survey last year reported that their jurisdictions actively enforce UPL regulations. (The survey did not ask respondents to quantify “active enforcement.”)
But nine survey respondents reported that their jurisdictions do not actively enforce UPL regulations. That group includes California and New York, two of the country’s most populous states. (The responses from four states were indefinite on the question of enforcement.)
The survey also reveals a wide range in the funding commitment that states give to UPL enforcement.
The Florida Bar’s UPL enforcement efforts are supported by a $1.4 million annual budget, by far the highest among the eight states that reported specific figures. The next highest UPL budget is $98,000 in North Carolina.
Primary responsibility for UPL enforcement varies from state to state, according to the survey results. Respondents said primary jurisdiction over UPL goes to either attorneys general, county attorneys or district attorneys; bar committees or bar counsel; or committees or commissions created by the supreme court.
More than half the survey respondents said they expect some change in the UPL structures of their states, but not necessarily stepped up enforcement efforts.
Meanwhile, 21 of the survey respondents said their jurisdictions authorize nonlawyers to perform some legal services. In 16 of those states, legal assistants or paralegals are permitted to do legal work under a lawyer’s supervision.
Twelve states permit nonlawyers to attend administrative or alternative dispute resolution proceedings, and in some states they may participate in proceedings. Eight states allow real estate agents or brokers to draft documents. Seven states permit nonlawyers to draft legal documents on a general basis.
But 15 of those 21 states do not regulate or license nonlawyers, survey respondents reported.
(Complete survey results are posted on the committee’s Web site: www.abanet.org/cpr/client.html#UPL.)
Tracking the Trends
The survey results suggest two divergent but interrelated trends, says Robert D. Welden, the general counsel to the Washington State Bar Association who chairs the ABA client protection committee. While state efforts to enforce UPL rules appear to be on the upswing, he says, more states are authorizing nonlawyers to provide at least limited legal services.
“There’s a growing need for legal services by low and moderate income people at a time when publicly funded legal services are diminishing,” Welden says. “As a result, states are increasing their UPL enforcement to protect the public from the incompetent and the corrupt, and also are exploring ways to improve and regulate the provision of law related services by nonlawyers.”
Lori S. Holcomb, UPL counsel for the Florida Bar, says more states are starting to focus on both UPL enforcement and regulation of nonlawyer practitioners.
“They’re seeing the kind of harm that the provision of incompetent and improper legal services by nonlawyers–for which there is little or no recourse–can have on the consumer,” Holcomb says. “It’s one thing to get ripped off, but it’s another thing to lose your rights,” she says. “If you lose custody of your child because a nonlawyer gave you bad legal advice, that’s real harm.”