HALT-An Organization of Americans for Legal Reform hereby submits comments regarding proposed rule LDD 6.1. HALT commends the Utah Supreme Court and the Utah Judicial Council for showing a commitment to expanding access to a range of legal services for the people of Utah through its proposed definition of the practice of law.

However, HALT respectfully suggests slight modifications of the proposed definition of the practice of law as laid out in proposed rule LDD 6.1, to make it even less restrictive. An overly broad definition of the practice of law would curb consumer access to a diverse marketplace of service providers and force every consumer with a legal problem "no matter how simple" to hire a lawyer. HALT urges the court to craft a simple, narrow definition of the practice of law that goes even further toward protecting access to justice.

HALT offers to the court its own simple model definition of the practice of law, which says that the unauthorized practice of law means saying you are a lawyer when you are not. This concise definition reflects the defining characteristic of the practice of law: the establishment of an attorney-client relationship. It protects the public against fraudulent service providers holding themselves out to be something they are not, while refusing to proscribe consumer access to legitimate nonlawyer service providers.

Finally, HALT urges the court to add to the proposed rule a provision that lays out the conditions for prosecuting violations of this rule to ensure the rule is used as a measure of consumer protection rather than a tool of anticompetitive practices. HALT suggests the court amend the proposed rule to include a provision that requires a consumer complaint to initiate prosecution for the unauthorized practice of law.

According to the American Bar Association, each year, 38 million low- and moderate-income Americans are shut out of the legal system simply because they cannot afford to hire a lawyer. Part of the solution to this crisis in access lies in expanding the availability of less expensive legal services provided by nonlawyers.

Due to the need for greater availability of reasonably-priced legal services, a definition of the practice of law should be as narrow as possible, allowing competent nonlawyers to provide necessary services at an affordable price. Utah's proposed definition of the practice of law, as laid out in subsection (b) of proposed rule LDD 6.1, on its face, is overly expansive and curbs consumer choice.

The proposed rule defines the practice of law as "the representation of the interests of another person by informing, counseling, advising, assisting, or advocating for that person through application of the law and associated legal principles to that person's facts and circumstances." Although later subsections of the rule carve out exceptions to the definition, the definition itself is sweeping.

Consumers who need access to the system have legal needs that exist along a continuum from simple matters to complex ones. These people therefore need access to a continuum of legal services, including traditional representation by a lawyer, nontraditional alternatives to lawyer representation, easier self-representation, and various combinations of these. The proposed definition, as laid out in the proposed rule's subsection (b), leaves consumers with decidedly few options, effectively blocking access to any service that exists between the two extremes of the continuum: full representation and self-representation.

HALT commends the court for realizing that the proposed definition, as it is defined in subsection (b), would deny legal consumers full access to justice in Utah. By following the definition of the practice of law with a number of exceptions to the definition in the proposed rule's subsection (c), the proposed rule reflects a realization that full access to the legal system is only possible when consumers have a choice among diverse service providers. Many of these exceptions reflect a restatement of already existing First Amendment rights (subsections (c)(1), (c)(2) and (c)(13)) and statutory rights (subsections (c)(8) and (c)(11)).

The proposed rule also carves out exceptions under subsection (c) that guarantee a consumer's access to dispute resolution channels that bypass the court system altogether. An obvious advantage of these channels is that they do not require parties to a dispute to pay expensive lawyer fees or face complex proceedings within the legal system. Furthermore, in cases like labor negotiations, arbitrations or conciliations, someone closely affiliated with the substance of the issue would be more qualified than most members of the state bar who may understand procedure, but not the actual issue in question. These exceptions, which HALT supports, include:

- allowing representation in mediation proceedings (subsection
(c)(7));

- allowing service, in a neutral capacity, as a mediator, arbitrator or
conciliator (subsection (c)(9)); and

- allowing participation in labor negotiations, arbitrations or
conciliations (subsection (c)(10)).

The remaining exceptions in the proposed rule's subsection (c), like those listed above, display a commitment to protecting the rights of Utah's legal consumers. Unfortunately, most of the remaining exceptions made in subsection (c) do not go far enough. These clauses include restrictions that preclude the clauses from meaningfully protecting a consumer's access to a range of legal service providers. These exceptions include:

- "Providing assistance without compensation to another person to complete forms provided by a court for protection from harassment or domestic violence or abuse." (subsection (c)(3))

This clause is correct to assume that the completion of court forms, which are often complex and difficult to understand, sometimes requires assistance. However, the proposed rule offers no compelling reason for limiting this clause's application to these types of court forms alone.

HALT recommends the court broaden subsection (c)(3) by extending it to all types of court forms. This would allow court clerks, lawyers working pro bono and other knowledgeable individuals to assist and answer questions regarding the completion of all types of court forms.

- "Assisting one's minor child or ward in a juvenile court proceeding, subject to court approval." (subsection (c)(4))

This subsection once again acknowledges that the court system can be difficult to navigate for certain individuals' in this case, juveniles. However, numerous other groups of people may require assistance with court proceedings. Consider an adult child who seeks to assist his or her elderly parent with a legal matter. Similarly, consider a person with limited English skills who seeks the help of his or her fluent child. Surely the court agrees that these situations should also be exempted from prosecution for the unauthorized practice of law. HALT urges the court to revise subsection (c)(4) to make it more inclusive.

Furthermore, HALT recommends that "court approval" in this case be the default. That is, unless a court specifically finds a person unfit to assist an individual in need (a minor child or elderly parent), this should be permitted. This would eliminate the possibility of intimidating and time-consuming court approval proceedings.

- "Representing without compensation a natural person or representing a legal entity as an employee representative in small claims court, subject to court approval." (subsection (c)(5))

HALT fully supports the aim of the exception laid out by subsection (c)(5). HALT has long advocated for reform of small claims courts' one of the only places in the legal system that people can resolve disputes simply, quickly and without a lawyer. Allowing for lay representation is an excellent step toward increasing the user-friendliness of Utah's small claims courts. HALT does recommend, however, that, as with subsection (c)(4), "court approval" be the default.

- "Representing without compensation a natural person or representing a legal entity as an employee representative in an arbitration proceeding, where the amount in controversy does not exceed the jurisdictional limit of small claims court as set by the Utah legislature." (subsection (c)(6))

While HALT supports the allowance of nonlawyer representation in arbitration proceedings, the proposed rule offers no compelling reason for placing a dollar limit on this practice. First, in subsection (c)(7) of the proposed rule, the court does not attach a dollar limit provision to the allowance of nonlawyer representation in mediation proceedings. HALT does not see why this logic would not also be extended to arbitration hearings.

Furthermore, the dollar limit jurisdiction of small claims courts, as set by the Utah legislature, is $7,500. This limit, although recently elevated from $5,000, continues to be prohibitively low, excluding many easily-resolvable, everyday disputes from small claims courts. Subsection (c)(6) of the proposed rule would apply that same prohibitive limit to arbitration proceedings using lay representation.

- "Advising or preparing documents for others by persons whose occupations (i) involve applications of one or more areas of the law and (ii) are regulated or subject to professional oversight by an administrative agency of the State of Utah or by a nationally recognized professional licensing or accreditation organization." (subsection (c)(12))

This clause represents an insightful recognition that document preparation and advice by qualified nonlawyers are valuable services. Indeed, a real estate professional with decades of experience in conducting real estate closings"which essentially involves " point and sign" services" would be much more qualified than a recent law school graduate with no experience in this area of law.

HALT is concerned, however, that as the rule would be applied, it would continue to block consumer access to a number of qualified service providers. As written in the comments to the proposed rule, "Subparagraph (c)(12) is intended to include the advice and document preparation rendered by certified public accountants, alternative dispute resolution practitioners, marriage and family therapists, real estate agents and brokers, securities agents an brokers, estate and financial planners and advisors."

HALT hopes that subsection (c)(12) is not exclusive to the providers listed here. For instance, it is unclear as to whether the rule exempts independent paralegals and legal document preparation services, both of which are industries that lack a formal regulatory body in Utah, but that nonetheless provide critical services at affordable costs.

We urge Utah to follow the model of Arizona, a state that allows, certifies and regulates its thriving independent paralegal industry. Document preparers and independent paralegals provide affordable access to the legal system in matters that are simple enough not to require an attorney and for which the average consumer cannot afford counsel. Fortunately, subsection (c)(12) of the proposed rule creates the opportunity for Utah to create a certification and regulation procedure for independent paralegals, which would ensure that the definition of the practice of law would not block access to these valuable service providers.

While subsection (c) of the proposed rule, with its list of exceptions, represents a substantial stride toward expanding consumer choice among service providers, it does not go far enough toward fully protecting consumer access to a variety of legal service providers. Even with subsection (c)'s exceptions, the restrictions placed on many of these clauses prevent them from actually protecting consumer choice. Furthermore, the proposed rule has striking omissions, such as a number of simple legal tasks that can be adequately handled by nonlawyers, like simple wills and basic consumer contracts.

While HALT commends the court for its attempt to create a definition of the practice of law that includes exceptions for all legitimate legal services, it is unlikely that any list of exceptions could ever cover such service providers. As the Advisory Committee on the Rules of Professional Conduct warned in its Report on the Definition of �The Practice of Law," the list of exceptions is " lengthy and a little unwieldy " and " subject to changes in licensure."

The advisory committee perceptively reported that "today's society demands (and reasonably so) that a number of areas of the practice of law may be undertaken by persons who are not lawyers." Unfortunately, instead of crafting a narrow definition of the practice of law that acknowledged this principle, the task force tried to accommodate its broad definition with a long list of exceptions.

Any list of exceptions, however, could never encompass every service that could reasonably and competently be rendered by a nonlawyer. More importantly, it deprives consumers of their right to choose what type of service best fits their needs.

Utah House Bill 349, the law that would have defined the practice of law, clearly recognized the danger of a broad definition of the practice of law. That law broadly interpreted the practice of law to mean "appearing as an advocate in any criminal proceeding or before any court of record in this state in a representative capacity on behalf of another person." The law went on to say that "only persons who have been admitted ... to practice law may practice or hold themselves out as licensed to practice law in this state."

H.B. 349 closely mirrors HALT's model definition of the practice of law, a single sentence that would protect consumers against fraudulent practitioners while also protecting consumer choice:

"The unauthorized practice of law is the act of falsely claiming to be a lawyer."

The defining characteristic of the practice of law is the establishment of an attorney-client relationship. The definition of the practice of law should reflect this core value. HALT's model definition protects the public against the only thing that a nonlawyer could not possibly do -hold the title of "lawyer" and thus hold oneself out as offering an attorney-client relationship.

HALT urges the court to modify proposed rule LDD 6.1 to more closely resemble the breadth and unrestrictiveness of H.B. 349 and HALT's model definition.

In addition to its troublesome aspects that threaten to limit consumer access to affordable and nontraditional service providers, proposed rule LDD 6.1 also lacks clear guidance on who can bring a complaint regarding the violation of the rule.

In a national study, Stanford University legal historian Deborah Rhode found that only two percent of complaints against nonlawyer practice involved any claim of injury. The vast majority of complaints are brought by competing lawyers. This raises concern that the proposed rule may be used as a mechanism for stifling competition, rather than as a measure for consumer protection.

To address this concern, HALT recommends that the court amend the rule to include the following provision:

"No civil or criminal action shall be taken against a person for unauthorized practice of law without a consumer complaint against that person."

Adopting this provision would provide assurance that Utah's practice of law rules would be used only to protect consumers, not to shield lawyers' business interests.

We urge the Utah Supreme Court to consider HALT's simple model definition, either as a replacement for proposed rule LDD 6.1 or as guidance for narrowing its own definition. HALT also urges the court to supplement rule LDD 6.1 with a provision outlining the conditions under which the unauthorized practice of law may be prosecuted to ensure the rule is not misused for lawyer protectionism. With these vital modifications, Utah can shape a rule that not only protects consumers from unqualified or fraudulent service providers, but also protects consumer access to a complete continuum of legal services.

Respectfully Submitted: HALT, Inc.
By: Thomas M. Gordon Senior Counsel

Posted by: Thomas M. Gordon at June 1, 2004 12:50 PM

The following suggestions are submitted relative to proposed Rule 6.1 in order to avoid public confusion or suggestions as to which forms may be appropriatedly used without knowing the factual circumstances under which they would be utilized and avoiding expensive litigation through misuse.

Subsection (c)(1): Delete the words "or publishing legal self-help information by print or electronic media"

The client will always spend less money with a lawyer to keep out of trouble than he will to get out of trouble. . .

Subsection (c)(2): insert after the word "strategies" the words "legal teachings or lectures,"

Posted by: Sidney G. Baucom at May 25, 2004 09:17 AM

In response to the comments of Earl D. Tanner, Jr., the context of the (c)(12) exception suggests the drafters probably intended the "nexus" that he says is missing. If so, any ambiguity should be easily remedied with a minor change to the text of (c)(12).

As to the breadth of professional licensing and accreditation, the rule as written does not appear to permit "every conceivable . . . bush league organization," as Mr. Tanner suggets. More importatnly, his critique ignores the irreversible reality of the present-day blurring of the lines between "what lawyers do," "what CPAs do," "what real estate agents do" and a variety of other professionals. For example, under Mr. Tanner's rubric, only a lawyer is qualified to watch over the documents in a real-estate transaction. Not only is this wholly impractical, it displays an arrogance of some in the legal community who believe that the J.D. degree and bar-exam passage constitute the singular gateway to competence to help people with legally related problems.

Finally, Mr. Tanner's comments provide no alternate solution to the difficult what-is-the-practice-of-law? problems facing the Supreme Court. A dismissive "the rule should not be adopted" is hardly constructive.

Posted by: Peirre Fermat at May 20, 2004 12:10 PM

The legal system (criminal and civil)is premised upon the concept that an individual has the choice to represent himself. If the individual represents himself, the court carries out its reponsibilities by asking questions of the individual to ensure that the individual's decisions are voluntary and are knowingly made. In a criminal case, the court also determines that there is a factual basis for the individual's decision. I have noticed how the criminal justice system has pressured individuals from exercising this basic right

I have noticed how criminal defendants are pressured into thinking that they either must obtain a lawyer from the public defenders' office or hire a lawyer. I have noticed how many defendants desire to take responsibility for their conduct and avoid a trial, but still wish the advice and consultation of a lawyer. Because of vague definitions of unauthorized practice of law, lawyers who are family members or close relatives of the criminal defendant are reluctant to advise or otherwise participate even in pretrial matters, such as plea bargains.
I would suggest that this rule explicitly provide that lawyers who advise or counsel without compensation a criminal defendant who is family or a relative in a pretrial matter, such as whether to enter into and negotiating a plea agreement is not engaging in unauthorized practice of law, subject to court approval. This exemption would be very similar to 6.1 (c)(5). There would be no need to have the lawyer follow the pro hace requirements.

Posted by: at May 19, 2004 12:19 PM

I admire the Committee for taking a very difficult first step. Their report on this rule lays out how tough it is to fashion a rule in this area. Still, they missed the target by a mile and a half on exceptions (c)(1) and (c)(2). These two exceptions purport to allow the sale of legal forms and general information so long as the forms and information aren't "specific advice related to another person's facts or circumstances." Hah!

Just helping the customer choose the right form is necessarily related to the customer's specific facts and circumstances. ("Do you need a quit-claim deed, a warranty deed, or a bill of sale, Mr. Jones?")

Any quick search for legal documents on the Internet brings up scores of sites hawking legal documents, many of which guide customers through an information wizard to gather the customers' specific facts and circumstances. These web sites then spit out a legal document with all the information inserted, including specific clauses tailored to the customers' specific facts.

It's not just fly-by-night Internet vendors, either. Go down to Office Max and pick up a copy of Quicken's home lawyer. It's a virual attorney that treads all over this propsed rule. Is the Bar Committee ready to take down Intuit?

What about the 150 legal self help books down at Barnes & Noble? If I pick one of these up and it says I don't need a living trust because my estate is less than $1.5MM, isn't it "counseling, advising, or assisting" me "through the application of the law and associated legal principles to my facts and circumstances"? What if the book comes with a CD containing a computer program that automatically creates a will for me (but not a trust) because I told the computer my estate is only worth $50. Is this somehowe NOT legal advice just because I'm not hearing it from a lawyer in her office?

I'm not suggesting that the Court adopt a rule to prohibit all these resources and then try to ban them. The genie is out of the bottle now.

But let's not pretend that all these self-help resource are ONLY giving legal information and that "legal information" does not equal "legal advice." In my opinion, that distinction becomes meaningless when the customer buys the legal information and acts on it. At that point they got legal advice from a merchant practicing law, at least insofar as "practicing law" is defined by this rule.

So, rather than put our heads in the sand about what is happening, let's change the rule to reflect reality. Exception (c)(1) and (c)(2) need to be changed to allow for the fact that all these self-help webs sites, computer programs and books ARE giving legal advice, we're saavy enough to see that, but we're allowing it anyway because it's too big a problem too curtail now.

Posted by: Aaron Nilsen at May 7, 2004 04:57 PM

Regarding Rule 6.1 on "The Practice of Law"

Exception c(12) is drafted far too broadly. There is no required nexus between the documents prepared and the administrative agency's regulation or oversight. For example, is every real estate agent authorized to draft construction contracts or is he/she limited to forms authorized by the Real Estate Division?

This breadth problem is compounded by deference to every conceivable "nationally recognized professional licensing or accreditation organization". Not only is the nexus betwen the document and the organization missing but now any bush league organization with offices in two states can turn its members loose on Utah residents. The probable havoc is simply comic, especially since it is blessed by the state's highest court. A national tax protester organization can charge high fees for helping the gullible set up constitutional trusts.

Utterly abandoning the field of document drafting as the practice of law seems foolish. The point of making document preparation the practice of law was to protect the public by giving some assurance of quality and accountability. A complaint to the bar is available to weed out bad work. A lawyer risks loss of his license by doing bad work. Bad drafting by non-lawyers is difficult to police, witness the lack of enthusiasm of the Bar for the problem. It is only rarely policed by the mechanism of a lawsuit because of the expense. I suspect there is a feeling among the clients of non-lawyers that one defense would be that they should have known they weren't dealing with a lawyer.

In this brave new experiment of policing non-lawyer drafters, what will the standard be? Is the proud member of Mediators International liable for not including provisions dealing with recent cases and legislation? If not, why not?

I have heard that one of the concerns motivating this proposal has been the cost of hiring an attorney. What I have not seen is proof that this proposal would actually reduce the cost of having a document drafted. The first cost, the fee for drafting, is not necessarily higher in a law office. For example, I work with AARP's Legal Services Network. A simple will is $75 and other simple documents are similarly cheap. I have to act as the gatekeeper over whether the cheap documents are appropriate. The wide variety of fact patterns one encounters makes this a job for a lawyer.

The second cost, the cost of bad drafting, is ignored by the proposed rule. The rule in its present form should not be adopted.

Posted by: Earl D. Tanner, Jr. at May 5, 2004 05:03 PM

Proposed subparagraph C(12) is too broad. It would allow anyone with a Real Estate license, a CPA designation, a CFP (Certified Financial Planner) designation, or other simiar designation in the real estate, tax or financial services industries not only to advise clients with respect to the legal implications of a specific transaction or strategey, but also to prepare documents controling complex real estate transactions, forming business entities, and creating wills, trusts, etc. for clients to execute.

My experience in obtaining licensing and professional designations in the real estate and financial services industries is that the training and testing required to obtain these licenses and professional designations barely prepares these quasi professionals to advise clients in basic matters within their core areas of training, and is wholly inadequate when it comes to drafting documents of legal significance for clients to execute. In fact, most of their training contemplates the involvement of an attorney to draft the documents (and provide a certain level of quality control)--especially when it comes to more complex transactions or strategies.

In light of this, I suggest that subparagraph (c)(12) be redrafted to provide a safe harbor only for quasi professionals who:
(1) are licensed by the State of Utah ,
(2) provide advice only in the specific areas where they have adequate training, and
(3) assist clients in completing basic forms that are specifically pre-approved by state regulators, but who do not otherwise draft documents of legal significance. I suggest dropping entirely the "nationally recognized professional licensing or accreditation organization" exception because it is simply too broad and poses too great a problem of quality control.

I believe that this approach strikes the appropriate balance between providing affordable basic legal services to the public and protecting the public from quasi professionals who lack the training to provide more complex legal services and who may be motivated more by the desire to close a sale and earn a commission than to serve the client's interests.

Posted by: J. David Milliner at April 30, 2004 04:36 PM

The adoption of rule (c) (12) would allow accountants and others to practice law. Financial planners could draft estate planning documents and real estate agents could draft contracts for the purchase of property. This is what the large accounting firms wanted when they suggested multi-disiplinary practice. Why do we want them to get in the back door?

Posted by: Bob Meredith at April 2, 2004 11:34 PM

Some observations in response to the unattributed comments posted on March 26 and March 30. [Original comments in brackets.

[Sections (a) and (b)(3) contemplate that a corporation may practice law.] No, it doesn't. Section (b)(1) refers only to "representation." The term "person" is not used in that section to indicate who is engaged in the representation. Section (a), on the other hand, explictly refers to "members in good standing of the Utah State Bar"--necessarily natural persons.
[Sections (a) and (c) entail that persons appearing in propria persona are not practicing law.] Actually, section (b)(1) establishes that a pro se appearance does not constitute the practice of law, because the person is not engaged in "the representation of the interests of another person."
[A compliance officer (H.R. or environmental) is engaged in practice of law under this Rule.] Admittedly, this is a little fuzzy, but these actions take place as an internal activity of a corporate "person," not "another person." A person that is not a natural person must have the internal ability to perform its own compliance with the law without having lawyers at every turn in the road. This is not different from a natural person deciding how far to park from a fire hydrant.
[A consultant engaged to provide opinions concerning, e.g., historical issues (legislative intent for example) are engaged in the practice of law.] This may or may not be unauthorized practice of law; this seems fact-specific.
[ "A person's facts or circumstances" is meaningless.] By that measure, so are countless other terms of art employed in the law, such as the "reasonable person." There are some basic concepts and terms that are understood in their common meanings.
[As an arbitration need not be bound by law, why is representation in an arbitration the practice of law?] This question either: (a) is a clever tongue-in-cheek poke at the general enterprise of defining a somewhat amorphous concept, or (b) evidences a complete misunderstanding of the proposed definition. This commenter assumes (a).
[Why would representing a party in arbitration be practicing law but serving as an arbitrator not be?] Serving as an arbitrator does not involve "the representation of the interests of another person." (Because of this, section (c)(9) is arguably not necessary, as arbitrating a dispute does not involve representation of another person.)
[The exemption of (c)(12) does not require that area of law be within the scope of the licensure or accreditation.] This would be a perverse reading of the provision and clearly not what the drafters intended. Still, it might be appropriate to clarify that the actions approved of in section (c)(12) are limited to those in the field of the person's accreditation or licensure.

[Under the definitions of the Proposed Rule, prosecutors do not practice law.] A prosecutor represents the interests of a governmental body (city, county, state, etc.), which would be a "person" under section (b)(3). And, indeed, there are "facts and circumstances" that accompany any prosecution.]

Posted by: Pierre Fermat at April 2, 2004 10:39 AM

Under the definitions of the Proposed Rule, prosecutors do not practice law.

6.1. (b)(1) The "practice of law" is the representation of the interests of another person by informing, counseling, advising, assisting, or advocating for that person through the application of the law and associated legal principles to that person's facts and circumstances.

Prosecutors do not advise or advocate for the person whose "facts and circumstances" are at issue in a criminal prosecution, which is the defendant. Prosecutos do not advocate or advise on behalf of the alleged victim either, as there is no attorney-client relationship between a prosecutor and an alleged victim. I suppose one might say the crime (or alleged crime) constitutues the state's "facts and circumstances," but that would stretch the phrase beyond any hope of meaningful content.

Posted by: at March 30, 2004 11:48 AM

Sections (a) and (b)(3) contemplate that a corporation may practice law.
Sections (a) and (c) entail that persons appearing in propria persona are not practicing law.
A compliance officer (H.R. or environmental) is engaged in practice of law under this Rule.
A consultant engaged to provide opinions concerning, e.g., historical issues (legislative intent for example) are engaged in the practice of law.
"A person's facts or circumstances" is meaningless.
As an arbitration need not be bound by law, why is representation in an arbitration the practice of law?
Why would representing a party in arbitration be practicing law but serving as an arbitrator not be?
The exemption of (c)(12) does not require that area of law be within the scope of the licensure or accreditation.

Posted by: at March 26, 2004 12:09 PM

Re: Subsection (c)(12). The subcommittee that drafted the proposed rule and the supporting report, as well as the full Advisory Committee on the Rules, struggled more with subsection (c)(12) than with any other single part of the proposal. The problem was to balance the following: (a) "the law" permeates many disciplines in which qualified non-lawyers are competent to provide services to the public; (b) these activities by competent, qualified non-lawyers should not be considered "unauthorized practice of law"; and (c) there are incompetents and charlatans who will ill serve the public if a grant of authority is too broad. The intent of (c)(12) and the accompanying comment is that properly licensed or accredited professionals acting within the scope of their licensure/accreditations should not be considered to be engaged in unauthorized practice of law.

The CPAs are the "poster children" for the non-attorneys who are legitimately dealing with applying the law to various matters. Within their field of certification, their practice should not be considered the unauthorized practice of law. Likewise, there are other disciplines in which non-lawyers are quite competent to deal with certain aspects of the law-and often more economically for the public they serve. We lawyers are, after all, not the font of all knowledge and experience about problems that may have a legal component.

Posted by: Pierre Fermat at March 19, 2004 11:02 AM

I have a particular interest in the small claims aspect of this rule, and know that the recent legislation increasing the small claims court jurisdiction contemplates rules addressing non-lawyers representing small claims court litigants. Therefore, my comments are directed to the provisions in section (c)(5) and (c)(6).

c)(5) permits non-lawyers to act on behalf of litigants, without compensation, "subject to court approval." The "court approval" aspect may need clarification. E.g., is approval on a case by case basis? Is the approval to come from individual case judge (probably pro tem, in the major metropolitan courts), presiding judge, clerk? Can it cover a time period, rather than a given case, perhaps by application (to permit repeat appearances by the same person)? Will repeat appearances by the same person be permitted, and if so will the number of repeat appearances be limited in some fashion? (Is there concern that an under-the-table cottage industry will develop?)

(c)(6) is a similar provision related to arbitration, but does not have a similar approval component. Should it require approval by the arbitrator, or by another source? Will there be a central "clearinghouse" of approval of non-lawyer representatives?

I don't know how often this will be an issue, or even if it is an issue, but it may merit further consideration. Thanks for considering my comments.

Posted by: Edward B. Havas at March 18, 2004 06:34 PM

What is the sanction for engaging in the unauthorized practice of law for anyone who is not a member or seeking to be a member of the Utah State Bar? Should the Bar include the authority to enjoin the unauthorized practice of law in its rules defining what such a transgression entails?

Posted by: B. Kent Morgan at March 18, 2004 02:13 PM

Maybe I'm uninformed, misinformed, naive, ignorant, confused, just missing the point entirely or stating the obvious, but won't this new rule bifurcate the legal services industry into one segment of providers that are heavily regulated, competing with another segment that is unregulated, but allowed to provide almost the same products and services? Buy using a few well-structured disclaimers will CPAs, MBAs, or life insurance sales/financial planners/retirement planners/escrow agents/real estate agents with few accreditations at all, be able to set up shops doing everything licensed attorneys do except making court appearances and providing individualized legal advice?

Random thoughts - Under subparagraphs (c)(1) and (c)(2), can anybody who is not a licensed attorney establish a business in which they:
1. Draft Wills; Trusts; Powers of Attorney for every conceivable application; Probate forms for administering decedents' estates, changing names, managing estates of minors and incapacitated persons;
2. Draft real estate or other sales/purchase transaction contracts; leases; rental agreements; notices;
3. Draft all the documents related to establishing a commercial entity; the contracts the entity uses to conduct business; the documents what must be filed with various government agencies like the SEC, FCC, FTC, FAA, etc.; documents for perfecting property interests;
4. Draft complaints; answers; motions; responses; discovery requests and responses; trial briefs......?

Because the non-licensed attorney is just selling forms that can generally be used by anybody in a situation similar to that in which the customer finds herself, or because the customer has enrolled in a class at "Lay Man's" Do-It-Yourself Institute of Legal Instruction and purchased all the forms necessary to probate grandpa's estate or file that quiet title action for the subdivision her neighbor is developing, she is not operating unlawfully. Moreover, since she is not a licensed attorney her work product does not need to conform to the same standards as that of the licensed attorney. However, if the licensed attorney is hired to provide the same documents for a client, her work product must conform to the standards of other licensed practicing attorneys in the area, and the licensed attorney must follow the requirements of the Rules of Lawyer Discipline and Disability.

Is this new rule not just a long form of the Legislature's 2003 definition of the Practice of Law with a dozen previously unwritten exceptions included?

Posted by: Jim Palmer at March 18, 2004 01:36 PM

Based on numerous experiences doing estate planning over 20 years and as a former chair of the Utah Bar Estate Planning Section, I am confident that 6.1(c)(12)will have two major effects upon thousands of Utah citizens. First, it will result in numerous estate plans that do not accomplish Utah citizens' desires because the documents are incorrectly drafted or the citizens were not informed they had other choices. Second, estate planning will be used heavily as a means to sell Utah citizens products that are not in their best interests, such as annuities, insurance, and securities. This will occur because the independence from products estate planners (i.e.,lawyers) have had for decades will largely end when 6.1(c)(12) is enacted. I have already seen increasing examples of both of these problems in recent years. I have also observed that most Utah citizens do not have enough training to discern these problems on their own.

Fred D. Essig
Dixon & Essig, P.C.

Posted by: Fred D. Essig at March 18, 2004 11:39 AM

I agree wtih Mr. Zaccheo. I like the definition but share a similar concern with respect to 6.1(c)(12). Can a financial or "estate" planner prepare Wills, Trusts, etc. for clients or a CPA set up a corporation of LLC for clients? 6.1(c)(12) would seem to allow this, yet my 18 years of experience has shown me that CPAs who try to create legal entities for clients (which some CPAs do on a regular basis) are not competent to do so and financial planners are not competent to prepare Wills and Trusts - even simple ones.

Thank you for the opportunity to comment.
Laurie S. Hart (#4844)
Callister Nebeker & McCullough

Posted by: Laurie S. Hart at March 17, 2004 07:18 PM

Thank you for the proposed definition. It's succinct and pragmatic and needed. My only concern is 6.1 (c)(12). For example, under that provision can public adjustors or real estate agents negotiate settlements of personal injury or real estate claims on behalf of others for a fee, often a percentage of the recovery? The provision would seem to allow that activity, which in my view should constitute the unauthorized practice of the law. Thank you for your consideration of the foregoing.
Mike.

Posted by: michael p. zaccheo at March 17, 2004 05:38 PM