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August 13, 2018

Task Force on the Model Definition of the Practice of Law

Comments on Draft Definition

Comment Submitted via Email

Dear Mr. Garwin,

Thank you for your efforts in addressing this area of important public and professional concern. I would also like to thank you for taking the time to hear the several reservations I have with the model definition in its current form. They are as follows:

Section (c)(2) creates a presumption of the practice of law where one is found to be "Selecting, drafting, or completing legal documents or agreements that effect the legal rights of a person." I hope that it was not the intention of the task force to incorporate the activities that loan officers, real estate brokers, and plumbers, among others, perform every day. To illustrate a few examples: it is, and has been, common practice for representatives of financial institutions to assist customers in completing loan applications. These applications are "legal documents...that affect the legal rights of a person." Under (c)(2), the neighborhood lender is presumptively engaged in the practice of law and made subject to civil and criminal penalties under section (f). So is the typical real estate broker who hands a client a purchase and sales agreement, and then explains the meaning of the form, as well as the local plumber who helps his customer fill out a contract for services. It should also be noted that nowhere is it explained how this draconian presumption created by (c)(2) shall be rebutted.

(c)(2) should be reworked so as to exempt those routine legal activities that accompany the practice of a trade or profession (such as the completion of loan applications/promissory notes, purchase and sales agreements for real estate, and contracts for services in the building trades). With this exception, activities such as setting up a storefront "quick help" legal office would still be prohibited as an unauthorized practice of law. It is this later activity which presents a real danger to the public and the profession. In the above three examples, however,a technically legal activity is performed by skilled and competent professionals and tradesmen, incident to a primary non-legal service. In the case of the storefront "quick help" legal office, a legal service, and only a legal service, is directly solicited and provided by non-lawyers, at a fee. The prohibition of these, and similar activities, should be the sole aim of section (c)(2). The legal profession suffers enough as it is from the public misconception that we strive to make the day to day functioning of business a difficult task. If loan officers, real estate brokers, and plumbers are prevented from doing their daily jobs without a license to practice law or the assistance of a lawyer, such a misconception will become a dangerous reality. In the interests of economic efficiency, it makes sense to create a class of "routine" legal activities for which the assistance of a lawyer should not be required by law, or suggested by ABA rules. The three illustrations listed above are among that class.

(c)(3) and (4) likewise create a similar problem. Under current law in many states (my home state of Massachusetts included) a non-lawyer may represent a person in front of state administrative bodies, such as the Department of Transitional Assistance (see, e.g., 106 CMR 343.150 and 701.350) and the Department of Employment and Training. Additionally, one need not be a lawyer to represent an individual in a Social Security Administration hearing. Because of the lack of adequate legal services for the poor, many indigent persons rely on the assistance of non-lawyers, such as social workers, paralegals, and friends, to assist them in obtaining the public benefits, both state and federal, to which they are entitled. The ABA has historically drawn attention to the endemic lack of lawyers who practice directly for the public interest. I applaud the ABA for this focus, and is why I lend the ABA my full support. Considering the organization's historic focus on the public interest and the needs of our poorest citizens, it should be the task force's paramount aim to avoid constructing clauses that could be construed against the opening of avenues of legal representation for the poor.

Granted, welfare regulation is extremely complex, and a lawyer can more adequately represent an individual appealing a benefit denial than a non-lawyer. But for economic reasons, not many lawyers are to be found in this area of law. Accordingly, a greater social harm would be worked by denying access to the few advocates the poor currently have. Many states have realized and codified this utilitarian trade-off. Sections (c)(3) and (4) should thus be remedied by inserting a clause stating, "except where local, state, or federal law may allow otherwise."

Thank you again for your continued efforts toward creating a practical model definition of the practice of law that will serve both the interests of the public and the profession. I hope that my comments and concerns may be addressed at the next occasion for the task force's meeting.


David J. Galalis
Boston College Law School, 2004