Saturday, April 20, 2019

How to define "the practice of law"

If you are interested in professional responsibility matters, you know that courts and scholars have struggled over the years to define exactly what constitutes "the practice of law."  (Here is an old example.  An ABA commission at one point abandoned an attempt to come up with a model definition, in fact.

Whether it is to deal with issues related to unauthorized practice of law, multijurisdictional practice, practice by non lawyers, sharing of fees with non lawyers and so on, having a standard definition would be helpful.  But the attempts at defining what is practicing law usually end up being over or under inclusive, thus making it difficult to definitively say that, for example, the work of an accountant doing tax code advising for a client is or is not practicing law.

I am writing about this today because I just saw a recent post at asking "What would be the effect of simply exempting matters smaller than $10k from the definition of the practice of law?"

The author's argument is that we could define the practice of law this way:  "Any matter that involves courts, contracts, wills, advice on rights or obligations that has a value of less than $10,000 is not the practice of law.  Admission to the bar is not required to represent clients in this category of matters."

As she says, this seems arbitrary, but, on the other hand, it is also practical. Why?  Because "[o]ne of the reasons that parties are often unrepresented in certain matters is because lawyers turn down cases that don’t make sense from a financial perspective."

So if people need help with work that requires advise on legal matters that most lawyers don't want to help with, why not let others who want to help do it?

You can read the article here.

As you know, a couple of jurisdictions already have programs that allow non lawyers to participate in the legal process by helping claimants, and participants in divorces, etc.    My most recent post on this subject, with links to older ones, is here.

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