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April 13, 2020

Task Force on the Model Definition of the Practice of Law

Comments on Draft Definition

Comment Submitted via Email

Mr. Garwin,

It's late and it's Friday and I'm quite sure I should wait until I'm not so tired before I write this, but it's on my mind now and I won't do it if I don't do it now.

My name is Deborah Orlik. I've been teaching people (lawyers and nonlawyers) about UPL since 1984. My book, Ethics for the Legal Professional, will be released in the 5th edition soon. It is probably the most widely used textbook for paralegal education in ethics. I also have produced a video on all of this is just to let you know that I know a little bit about the subject.

I fully appreciate the struggle that the ABA has undergone lo these many years on this subject and I also appreciate the countless hours committee members and staff have dedicated.

However, the draft definition has a fatal flaw which can only be over come by changing perspective. Take the following scenario.

My mother, who does not have a college education but watched the O.J. Simpson trial gavel to gavel, is asked by her neighbor "Gosh, my husband just told me that he murdered his mother 20 years ago and I'm wondering a few things: Can I be in trouble with the law if I don't tell the police about this? and, it was so long ago, isn't he safe from prosecution now anyway?"

This neighbor knows perfectly well that my mother is not a lawyer, but under my reading of the draft UPL definition when my mother tells her about spousal privilege and statute of limitations on murder, she would be guilty of practicing law without a license.

She has not committed UPL because the neighbor didn't come to her for legal advice, only the advice of a friend, or only to get solace, or a second opinion.

So, that's what's missing from your definition: the other perspective. What did the "client" ask for?

If the client asks the paralegal "How should I act on the witness stand? What should I wear?" the answer may well constitute UPL in the right circumstance, but more likely the client is just looking for some fashion advice from a well dressed member of the legal community.

Drafting an overly conservative definition of UPL, and one that does not take "context" into consideration will only have the effect of hamstringing smart, dedicated, hard working non lawyers, and driving their employing lawyers crazy. When my paralegal is too afraid to answer the question about appropriate dress for a witness, you've made my life more difficult, you haven't protected the public, you've increased the cost of legal help, and you've frustrated my nonlawyer staff.

I hope that the Committee will take my very tired words into consideration in its next draft.

And thank you for reading through this entire email.

Deborah Orlik