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April 13, 2020

Task Force on the Model Definition of the Practice of Law

Comments on Draft Definition

Mr. Garwin:

The draft definition of the practice of law prepared by the ABA Task Force on the Model Definition of the Practice of Law is a good start on a difficult subject. I note the following for the Task Force's consideration.

1. The title of the draft rule is much more restrictive than the content of the draft. I recommend removing "definition of" from the title of the rule.

2. Subsection (c) of the draft rule contains examples of the practice of law and makes them "presumptions." Rather than making the examples "presumptions," thereby inviting litigation over burdens of proof, I recommend deleting the current introductory sentence and inserting in its stead: "Examples of the practice of law include, but are not limited to:

. . . ." Each jurisdiction will then be able to determine who bears the burden of proving a person is engaging in the practice of law.

3. The proposal (including Comment [2]) does not sufficiently address separation-of-powers issues that need to be addressed. For example, many state and federal executive agencies (e.g., the Internal Revenue Service and the Social Security Administration) allow non-lawyer representation in administrative proceedings. Although many state supreme courts have consistently ruled that regulation of the practice of law is an inherent and exclusive judicial function, they have also generally shied from imposing conditions (unless constitutionally mandated) upon executive branch administrative hearings. State judiciaries need assistance in fashioning a rule that does not impinge upon judicial authority to regulate the practice of law, but that also does not stray into violations of executive authority. Perhaps, subsection (d) could be amended by adding an exception as sub-section (5) that says: "Representation of another before an executive or legislative administrative agency where such representation is allowed by the agency's rules."

4. In section (f), I recommend rephrasing the "subject to" phrase to read: ". . . subject to appropriate civil, criminal, or equitable penalties" or some other phrase that indicates unauthorized practice is subject to common law contempt and that injunctive relief is possible.

Thank you for the opportunity to comment.

Ronald T. Y. Moon
Chief Justice
Supreme Court of Hawaii
417 S. King Street
Honolulu, HI 96813