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August 13, 2018

Task Force on the Model Definition of the Practice of Law

Comments on Draft Definition

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Under the draft, "completing legal documents or agreements that affect the legal rights of a person" constitutes the practice of law. The definition is too broad. It would include activities that require no legal knowledge, training or discretion.

I recently argued the Dressel v. Ameribank case before the Michigan Supreme Court, where the issue was whether filling in the blanks of a standard Fannie Mae mortgage constituted the practice of law. The bank employees were not authorized to change the form - just fill in the blanks with the name and address of the purchaser, name and address of the borrower, amount borrowed, payoff date and description of secured property. And, since this was a refinancing, the property description was taken off the old mortgage and deed - no discretion required.

During the argument, several justices noted that if that constitutes the practice of law, so does the completion of a charge slip for a meal at a local restaurant. The signature on the charge slip constitutes an agreement to pay - affecting the legal rights of the person making the charge. The waitress fills in the amount, calculates the tax, sometimes includes a tip, and presents the form for signature. Under the proposed definition, that would constitute the practice of law. (perhaps the pro se exception applies here, since she is obviously doing this for her employer who is a party to the transaction).

While I generally agree the any definition ought to include the requirement that the act involve the "application of legal principles and judgment," there are many situations in which the drafting or completing of documents that affect the legal rights of a person do not involve the application of legal principles and judgement, and the second "presumption" seems to unnecessarily undercut the principle requirement.

-William Holmes