Written Remarks of James C. Turner Submitted to the
Commission on Multidisciplinary Practice
February 5, 1999
Statement of James C. Turner, Executive Director, HALT, Inc. — An Organization of Americans for Legal Reform before the Commission on Multidisciplinary Practice, American Bar Association
With over 50,000 members nationwide, HALT -- An Organization of Americans for Legal Reform pursues an aggressive education and advocacy program to open up the legal system, and make it more accessible and affordable for ordinary Americans. HALT has long advocated reforms to unauthorized practice of law statutes and other regulations that restrict legal services provided by nonlawyers and lawyers working in non-traditional settings.
We sincerely hope that this Commission will serve as a catalyst for removing these vestiges of an era when the organized bar acted, sometimes unlawfully, to protect lawyers’ economic interests rather than to further the public interest in having an affordable and accessible legal system. The Courts have invalidated mandatory fee schedules established by state bars, and have rejected attacks on pre-paid legal service plans and self-help publications. But the restrictions on lawyers practicing with non-lawyers remain.
Four years ago, in 1995, the Commission on Nonlawyer Practice recommended that the ABA "examine its ethical rules, policies and standards to ensure that they promote the delivery of affordable, competent services and access to justice." In particular, that earlier Commission emphasized that "a prominent example of what might be examined is the ABA’s own set of ethical rules governing lawyer practice in conjunction with nonlawyers."
Today, cost and complexity remain the largest barriers that prevent access to the civil justice system. Tens of millions of low- and moderate-income Americans cannot afford to hire a lawyer when they have a legal problem, and millions of others are intimidated by even the prospect of trying to deal with the system on their own.
One way to reduce costs is to increase consumer choice and encourage the development of innovative methods of delivering legal services. Empowering citizens with self-help books and software that allow them to handle routine matters pro se is a critical innovation that can help expand access. Unfortunately, unauthorized practice of law statutes have been used by some state bars to attack these innovations.
Just last week, for example, the U.S. District Court for the Northern District of Texas ruled that distribution of Quicken Family Lawyer, one of the most popular self-help software products in the country, violates the Texas unauthorized practice of law statute. If this were an isolated incident it would be bad enough.
Unfortunately it isn’t. In Delaware, lay advocates for disabled children in educational placement proceedings have been charged with unauthorized practice. In Oregon, an independent paralegal who helped couples through uncontested divorce proceedings was put out business for unauthorized practice of law. And here in California, a San Bernadino lawyer’s suit against 40 independent paralegals for unauthorized practice of law and unfair competition was only resolved last fall when the Governor signed legislation that recognizes "legal document assistants" as legitimate service providers.
Finally, these same unauthorized practice of law statutes have already been used to challenge some services provided by accounting firms and others. In Texas, an unauthorized practice of law proceedings were brought against Arthur Anderson based on the tax advisory services provided by its lawyers and accountants. Although this proceeding was terminated, other accounting firms have received similar unauthorized practice of law inquiries.
Does anyone seriously think that these actions actually protect consumers?
Isn’t this just the latest incarnation of lawyers defending their economic turf?
This Commission has a unique opportunity to provide leadership that begins to reverse this troubling trend and encourage innovation. I’d suggest three principles —
- Unauthorized practice of law means saying you’re a lawyer when you’re not.
- Innovative partnering is permissible with client consent after full disclosure of work and fee arrangements between lawyers and nonlawyers.
- A client or customer complaint is required before unauthorized practice of law proceedings can be initiated.
The time of paternalistic bar regulation has passed. Consumers can take care of themselves, and should have access to the full array of tools that can help them deal with the civil justice system. This includes many activities and products that are now being challenged as unauthorized practice of law.
It is time to open up the legal system so that the promise of justice is within the economic reach of all Americans. We hope that this Commission will help lead the way.