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April 13, 2020

Task Force on the Model Definition of the Practice of Law

Comments on Draft Definition

Having reviewed the committee's proposed definition of “practice of law,” I have questions about both the wisdom of the project and the specifics of the recommendation.

In addition to representing many large law firms in malpractice cases and advising on professional responsibility issues, I have represented many clients in matters related to unauthorized practice of law. These UPL representations have included: advising a major insurer with respect to the organization and operation of its staff counsel offices defending insureds; defeating a judicial challenge to the staff counsel operation of a major insurer; defending mortgage lenders in a number of class actions asserting that the collection of document preparation fees constitutes UPL; and advising document preparation services, title companies, banks and financial institutions, and religious and charitable organizations about relevant aspects of their activities. I am a member of the State Bar of Michigan standing ethics committee, the special committee on multi-disciplinary practice, and the special subcommittee on Ethics 2000. I was the author of the principal amicus brief (on behalf of Huntington Bank and Rock Financial) filed in the case of Dressel v. Ameribank, now pending before the Michigan Supreme Court, in which the central question is whether the preparation by a mortgage lender of the mortgage note and mortgage instrument is UPL and whether the collection of a document preparation fee makes a difference.

I believe any attempt to define the “practice of law” will inevitably miss the mark, and any abstract definition is likely to be flawed, although it may be possible to define the “unauthorized practice of law.” The “practice of law” and the “unauthorized practice of law” are not two sides of a coin. While it is true that there are some central activities that only lawyers can perform, most lawyers spend a majority of their time on penumbral activities that can equally be performed by non-lawyers without fear of prosecution. At most, a satisfactory definition of “practice of law” would address that small fraction of activities that only lawyers can perform for others. The problem is that such a definition of “practice of law” would exclude many activities that are legitimately part of lawyers’ activities. By contrast, defining UPL would only require defining several categories of specifically prohibited conduct.

Indeed, if an appropriately narrow definition of “practice of law” were promulgated and applied as a screen to most lawyers’ daily activities, serious questions could be raised about the reasonableness of fees charged for activities that fall outside the narrowly defined area of conduct that is uniquely the turf of lawyers. In these days of fee-review auditors and tight-fisted clients, I would not be surprised to have the definition raised as an objection to payment of fees at lawyer rates for non-lawyering conduct.

Also, it seems particularly difficult to draft an acceptable definition at a time of such rapid technological advances and profound changes in the legal field, reflected by the MDP and MJP efforts, and so forth.

In State Bar of Michigan v Cramer, 399 Mich.116, 132-33; 249 NW2d 1 (1976), the Michigan Supreme Court made these comments regarding the “formidable task of constructing a definition of the practice of law”:

We are still of the mind that any attempt to formulate a lasting, all-encompassing definition of [the] practice of law is doomed to failure for the reason that under our system of jurisprudence such practice must necessarily change with the ever-changing business and social order.

No essential definition of the practice of law has been articulated and the descriptive definitions which have been agreed upon from time to time have only permitted disposition of specific questions. These definitions have been relatively helpful in counseling conduct but have provided no sure guide for the public’s protection.

I do not believe that a committee can craft a sufficient description in the abstract when courts in Michigan and elsewhere have been unable to do so in fully developed litigation with appellate argument and the assistance of amicus parties.

With regard to the specific recommendation of the committee, I have several main concerns.

First, the definition contained in (b)(1) is simply unworkable. It completely omits the concept of limiting the “practice of law” definition to services performed for others. When activities involve knowledge of legal matters, the most basic test of whether the activities constitute the practice of law is whether the person is acting for himself or for others. The former is not the practice of law; the latter can be, depending on circumstances. That the activities involve consideration of legal consequences to the actor or others is not controlling. Virtually all business activities affect persons other than the actor, and all transactions and contracts are by definition between the actor and others. Everyone is presumed to know the law, and businesspersons in particular, who are required to conform their conduct to complex and technical legal requirements, often have a sophisticated and deep understanding of legal matters despite lacking a law degree. By necessity, any businessperson contemplating a course of conduct must take into consideration the effect of their proposed course of action on others. Is Bill Gates practicing law because he understands antitrust principles? Similarly, a party’s negotiations with another often involves discussion of the effect on the other of the contemplated conduct or agreement. Is a banker practicing law because he describes a joint account when an elderly customer asks to have an adult child added to the account? It is unacceptable for the basic definition of “practice of law” to encompass one’s efforts to conform one’s own conduct to the law, or to document one's own transactions, and to declare the conduct legal by exception if it happens to fit within the undefined phrase “pro se representation.”

Thus, I would either add the crucial “for others” element to the definition in (b)(1), or more appropriately, strike (b)(1) entirely and incorporate the “for others” element in a variation of what is now (c).

The proposed definition could lead to ridiculous results. During the October 8, 2002 oral arguments in Dressel v Ameribank, appellees’ counsel attempted to argue for a definition of “practice of law” much like the proposed definition, stating (p.17) that “[I}n essence engaging in the practice of law is engaging in any actions in which the legal rights and obligations of an individual are impacted,” but acknowledging (p.26) that “an individual or entity may engage in activities that otherwise implicate the practice of law if they do it incidental to their activities and for themselves.” Applying those tests led him to argue that filling in a VISA card charge receipt for a lunch would be the practice of law, as would be a non-lawyer’s writing down of the terms of an agreement with his neighbor.

It is not satisfactory to try to backdoor the “for others” element by the undefined and ambiguous “pro se” paragraph. While useful shorthand, the phrase “pro se representation” is self-contradictory. When an person himself takes action, or himself enters into an agreement, or defends himself against attack, he is simply acting in his own right. He should not be considered to be acting “for” himself, or as his own “representative,” or as his own lawyer, or any other modifier. While the concept of self-representation is useful (but unnecessary) shorthand when describing a person who chooses to appear pro se in a court proceeding, the phrase causes confusion when extended to business and commercial activities.

Just as a person may appear in court pro se without legal counsel, so may a person prepare the documents for their contract without counsel, or conform their conduct to the law without counsel. In no case should they be considered to be acting under a pro se exception to the UPL rules. An analogy may help. Virtually every state requires barbers and dental hygienists to be licensed, but no state would consider that a person who brushes his own hair or teeth does so under the pro se exception to those licensing requirements. A person acts to document his transaction, just as one acts to brush his teeth, because he can. He is no more in the business of law than he is in the dental business.

Nor do I believe that the Bar’s definition of “practice of law” should include provisions defining the civil and criminal liabilities of a person who is not a lawyer. Such legal matters should be addressed by each state, not by what is in essence a licensing rule.

In conclusion, I would suggest that the ABA not adopt a definition for “practice of law.” If a decision is made to proceed, however, I would suggest that the rule be revised and posted for further comments.

George G. Kemsley
Bodman, Longley & Dahling LLP
100 Renaissance Center, Suite 3400
Detroit, Michigan 48243