I was pleased to see Bernie's post on the Lola case; prohibitions against the unauthorized practice of law (UPL) raise a number of provocative issues. Here's another UPL issue that I have been thinking about: Organizations are able to employ large cadres of non-lawyers to do legal work, while individuals cannot. This discrepancy prompts me think about who we protect from the unauthorized practice of law, why we offer those protections, and whether the protections should remain.
Businesses, nonprofits, and government agencies employ scores of workers who interpret and apply the law. Human resource officers, compliance workers, contract managers, and others help their employers navigate the maze of today's regulatory world. Some of these employees are lawyers, but most are not. Instead, they rely upon workplace experience and specialized training to carry out a large number of tasks that courts and legislatures consider "the practice of law."
These tasks include drafting contracts, leases, and other documents; interpreting statutes, regulations, and court decisions; and applying those legal rules to the employer's situation. There is no doubt that these workers would be practicing law if they performed this work for a third party.
Some of these organizational workers are supervised by attorneys, but most are not. UPL rules do not require attorney supervision, because the workers are providing services to their own organization. Individuals are allowed to do their own legal work (whether or not they hold a law license) and UPL rules treat an organization as an "individual."
Government agencies give non-lawyers even greater scope; some of them advise third parties outside the agency. A recent opinion from the Florida Supreme Court, for example, notes that non-lawyer staff members at the Florida Department of Children and Families (DCF) advise Medicaid applicants "about Medicaid trusts and other eligibility laws and policies governing the structuring of income and assets when relevant to the applicant's facts and financial situation." (P. 7) I suspect that many other government agencies use non-lawyers for similar work.
Individuals don't have the same option to seek legal advice from non-lawyers. An individual has the right to represent herself in court, to compose her own contracts, and to engage in other law-related work on her own behalf. She can also purchase books and scan websites to learn about the law. She may, finally, use a formbook or computer program to generate contracts, wills, and other legal documents. But if she wants customized advice, she must hire a lawyer; she can't hire a non-lawyer to counsel her on a law-related matter.
This means that individuals must pay lawyer fees or go without legal representation. They don't have the option--readily available to organizations--of relying upon non-lawyers who have developed expertise on a matter that falls within the "practice of law" umbrella.
The Florida opinion cited above illustrates the discrepancies created by the UPL rule. Medicaid applicants received advice about eligibility (including steps they might take to preserve eligibility) from non-lawyers working for the government. Applicants, however, could not seek an outside opinion on eligibility unless they were able to hire a lawyer. Even a retired government worker, who had rendered eligibility advice for decades, could not counsel an applicant once she left government employment.
I understand the consumer protection policies that partially motivate this distinction. As the Florida Supreme Court pointed out, government supervisors and business bosses have more expertise than many individuals; a supervisor can fire a non-lawyer who gets the law wrong. Individuals are more likely to fall prey to shady operators claiming to be experts. Indeed, the court cited several instances in which non-lawyers had harmed Medicaid applicants by giving bad advice or drafting improper documents.
Still, the distinction troubles me. Compliance officers, human resource directors, and other specialized employees have proven very effective in business. Government agencies like the Florida Department of Children and Families similarly rely upon non-lawyers to offer legal counsel. If workers like these can satisfy the needs of businesses and government, can't we make similar help available to individuals?
One option is to recognize practice areas in which non-lawyers (with appropriate education and experience) are capable of providing high-quality services, and then license practitioners in those fields. Washington State's Limited License Legal Technician Program is an excellent step in that direction, although I might tinker with some of that program's details.
Expansive prohibitions against the unauthorized practice of law are becoming difficult to defend. Businesses, nonprofits, and government agencies routinely rely upon non-lawyers for work that courts call the "practice of law." Publishers, websites, and software creators have properly claimed the right to share legal information with non-lawyers; the bar can no longer claim exclusive rights to that information--any more than doctors are able to prevent patients from gathering their own information about diseases and treatments.
UPL rules now cast their largest shadow on the consumers who most need low-cost, easily accessible legal assistance. These individuals cannot obtain the type of law-related assistance that organizations readily enjoy. Rather than maintain this distinction, our profession should work to overcome it. There will always be a need for full-fledged lawyers, but society also needs a range of law-related workers who can offer individuals the type of advice they routinely give to organizations.