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August 14, 2018

Task Force on the Model Definition of the Practice of Law

Comments on Draft Definition

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I think this is a great idea and crucial in my mind. I practice estate planning in Minnesota and I am constantly dealing with clients who have received legal advice from non-attorney estate planners, insurance agents and others. It always seemed to me that we already have a definition of the practice of law, and that these non-attorneys are practicing law. While the proposed model definition is a better definition than currently exists, the issue is enforcement. Who is going to prosecute these people? Attorneys have an inherent conflict of interest because on one hand, these non-attorneys advice-givers are taking business away from the attorneys. But on the other hand, the non-attorneys are referral sources or friends of referral sources. There are two ways the unlawful practice of law would be enforced in Minnesota - injunction actions brought by either county attorneys (who are too busy with violent crimes) or the practicing attorneys. Again, though, the practicing attorneys would ruin their reputations with their insurance agent and other referral sources by commencing such a law suit. Only if an outside entity or person (like the county attorney or state attorney general) is actually going to enforce the current or revised definition of the practice of law will any change actually occur. Specifically what civil and criminal penalties is the model definition referring to?

Paul Deloughery in Rochester, Minnesota.