Model Definition of the Practice of Law
The ABA has adopted numerous policies over the years that have been fundamentally related to and dependent upon the definition of the practice of law without ever adopting such a definition. There is no suggestion that these policies have been insubstantial or unenforceable when adopted by jurisdictions because of that void. The highest court of each jurisdiction has in one way or another addressed the definition when necessary to implement these policies. However, the changing environment surrounding the work that lawyers do and the needs of the public suggests that a fresh look be taken as to whether the time for a model definition has arrived.
The Association’s interest in the parameters of the practice of law has been highlighted in recent years by the work of the Commission on Nonlawyer Practice and the Commission on Multidisciplinary Practice. The common thread in the work of these entities has been the revelation that there are an increasing number of situations where nonlawyers are providing services that are difficult to categorize under current statutes and case law as being, or not being, the delivery of legal services. This growing gray area may be partially responsible for the spotty enforcement of unauthorized practice of law statutes across the nation and arguably an increasing number of attendant problems related to the delivery of services by nonlawyers. Recently a number of jurisdictions, most prominently Washington, Arizona and the District of Columbia, have taken steps to codify a definition of the practice of law so as to attack these trends. Given the Association’s leadership role in this area, it is appropriate for it to consider anew the need to present a model definition to address on a national stage these issues and to aid other jurisdictions that may wish to take action. The Association already has in place an entity, the Standing Committee on Client Protection, that has done significant research in this area and that could be at the forefront of Association activity in this regard.
To determine the best approach for the Association to address whether to create a model definition of the practice of law that would support the goal to provide the public with better access to legal services, be in concert with governmental concerns about anticompetitive restraints, and provide a basis for effective enforcement of unauthorized practice of law statutes.