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Vol. 29, No. 4

UPL: New Solutions to an Old Problem?

by Robert J. Derocher

Not long ago, recalls State Bar of Wisconsin Executive Director George Brown, the bar discovered that an “attorney” who had practiced without incident in the state for five years had never passed a bar exam anywhere.

The bar asked the local district attorney to prosecute the man for unauthorized practice of law under state statute, but the DA said he would do so only if “harm could be proven,” by the man’s actions, Brown says.

Subsequent interviews with his clients found that everyone was happy with his work. The case was never prosecuted.

“It was incredibly frustrating,” Brown says. “It was the kind of case that makes [bar members] just throw their hands up in disgust. They feel very strongly about [UPL]. It’s hard enough practicing law without having to deal with people who shouldn’t be practicing.”

The Wisconsin case underscores the complexities and frustrations of confronting UPL. Often, a combination of factors—ranging from overburdened prosecutors to the generally poor public image of attorneys—makes finding and reducing UPL a difficult task, Brown and other bar leaders say.

While some states are looking at changes in how to define and prosecute UPL, it is likely to remain a persistent problem, leaders say. For bar associations large and small that are looking out for their members’ interests, potential solutions might lie not only in vigilance and prosecution, but also in more education and public outreach. A multipronged effort is needed, many say, to tackle a seemingly simple issue that is a complex thorn in the side of frustrated bar members.

Challenges are many

Measuring the depth of UPL and whether or not it is increasing or decreasing is a challenge, bar executives say, since many cases go unreported. “[UPL] is much more prevalent than we’ll ever know,” says Tom Pyrz, executive director of the Indiana State Bar Association. Still, he says, “it may be the single largest complaint we get from our members.”

In most locales, it is the local or state bar association that gets the first call about potential UPL cases. A survey conducted last year by the ABA Standing Committee on Client Protection found that 15 of the 36 states surveyed prosecute UPL cases through state bar committees or bar counsel. More often than not, Pyrz says, complaints come from members rather than the public. That’s not surprising, he says, since “bar associations are looked at as protecting the legal profession, more than protecting the consumer.”

Lawyers and bar associations in many communities are often hesitant to publicly raise UPL issues, fearing backlash from citizens about the issue of lawyer job protection and the perception of high attorney fees. “It’s not a popular thing to be prosecuted,” Pyrz says.

“It can be a public relations nightmare,” Brown adds.

Pyrz, Brown, and others say that consumer concern, not self-preservation, is the main driver behind UPL complaints. The most current high-profile UPL case in Indiana is typical of how the problem is discovered, according to Pyrz. In that case, the state attorney general’s office is prosecuting a notary public who allegedly advertised herself in the Hispanic community as a notario. In Mexico and other Spanish-speaking countries, a notario can perform several legal functions.

The case was brought to the ISBA and prosecutors by a licensed attorney who alleges that a notary improperly performed legal services for a Mexican man who was deported because of the notary’s shoddy work. The victim’s wife sought out the licensed attorney, who then alerted the ISBA. The case is pending in the state supreme court.

The challenge of prosecuting UPL also impacts the number of cases that are reported. In many states, some sort of harm by the nonlawyer must be proven to prosecute for UPL, and that can be difficult to prove. “In UPL, you really don’t know the level of harm,” says John Berry, executive director of the State Bar of Michigan and a frequent speaker on UPL issues. Berry oversaw UPL efforts for the Florida Bar for several years.

“Resources and jurisdiction are the two major issues in UPL,” Berry adds. “How much resources are there for prosecution? Who do you prosecute? Who will do it?”

UPL prosecution in most states is often in the hands of state’s attorneys or district attorneys, “and they just don’t have the time” to prosecute what is, in many states, a misdemeanor offense, Brown says.

In Texas, where UPL prosecution is in the hands of the district attorney, “most DA’s offices are understaffed,” says Rodney Gilstrap, chair of the State Bar of Texas’ UPL Committee. “With murders and rapes and robberies going on, it’s hard to get them real excited about this kind of conduct.”

Toward a definition of practice

The 2004 ABA survey also underscored the problems of UPL enforcement. At least 10 of the 36 jurisdictions surveyed said UPL enforcement was “inactive or nonexistent,” while several of those who enforce UPL said “insufficient funding makes enforcement difficult.” Additionally, most jurisdictions either do not have a specific annual expenditure for UPL, or they were unaware of the exact amount, according to the survey.

In Nebraska, a UPL offense can get someone a fine of less than $500 and no jail time. As a result, the Nebraska State Bar Association has had “no real effective role in enforcement since 1980,” says Jane Schoenike, the bar’s executive director.

Prosecution is also hobbled, she says, by the fact that there is no clear-cut definition of the practice of law. As an example, she points to a recent effort to prosecute We the People, a legal document preparation franchise that has been the subject of UPL probes in other states as well.

The case was dropped when prosecutors said Nebraska state law on the practice of law was too weak.

But that could change, as the Nebraska Supreme Court considers an overhaul that would define what constitutes the practice of law and set out stricter rules and penalties for UPL violators. Included in the proposal is the hiring by the bar of a full-time staff person dedicated to locating and halting UPL.

The proposal has met considerable resistance in Nebraska from several groups, most notably accountants, banks, and insurance companies who fear that their legal consultations with clients could put them in UPL situations, Schoenike says.

Public outreach needed

Statutes and resources alone do not necessarily guarantee success against UPL. In Florida, whose state bar has the most funding of any state bars for UPL enforcement ($1.4 million in 2004), the state routinely averages about 700 UPL complaints a year, says Lori Holcomb, UPL counsel for the Florida Bar.

“The number of complaints doesn’t seem to change much. It’s the type of cases that seem to change,” says Holcomb, a member of the ABA Standing Committee on Client Protection. “Recently, we’ve seen a lot of complaints about people providing illegal foreclosure advice.”

One of the keys to success, Holcomb and others say, is a public education and outreach program. “We put out press releases and consumer pamphlets and speak to groups as much as we can,” Holcomb says.

“I think education is a really important issue,” Berry adds. “One of the best things we do is that we go to the senior citizen groups. We let them educate us. The closer you get to the grassroots, the more you’re likely to find out if there are [UPL] issues.”

The problems of UPL are also likely connected to the overall image of lawyers, Brown says, which is why the Wisconsin bar’s branding campaign—centered around the idea that lawyers are experts who help the public—might help reduce UPL. “There’s a do-it-yourself-ism out there. People do their own plumbing, so why can’t they do their own divorces?” he says. “[The public] sees a lawyer’s bill. They don’t see what goes into it. We need to show that lawyers bring value.”

Pyrz and Gilstrap believe that select prosecution of cases—such as those involving notarios—can also help positively influence public opinion. “I don’t think you can get the public to believe it isn’t self-preservation,” Pyrz says. “That’s why you have to bring cases like this.” When details of such cases are made known, the public may realize the potential harm caused by UPL.

In Texas, a successful notario prosecution by the state attorney general helped quell reports of similar problems, Gilstrap says, but still, “it never goes away. It just pops up somewhere else.”

Bar associations and prosecutors will also continue to be confronted with the issue of resources. Businesses that want to keep a hand in legal services often have plenty of money to defend their positions, says Gilstrap. As an example, he cited a proposal in Texas to keep insurance companies from providing “captive counsel” to their insureds. “We almost feel like we’re in a David and Goliath situation,” he says.

Still, there is hope on the horizon. Besides Nebraska, five other states are in the process of adopting a clear definition of UPL, according to the ABA survey. More than half of the 36 states surveyed said they expected to add to their UPL enforcement efforts.

Says Gilstrap, “We just need to keep letting people know that UPL is a constant out there.”