Unauthorized Practice of Law, Consumer Protection and the Economics of Law Practice - Lots of Questions

By common perception, Unauthorized Practice of Law (UPL) is either non-existent or a victimless crime. You don't often hear about cases of non-attorneys representing anybody but themselves. The problem of UPL appears to be a minor one, if it even exists.

But the case of a fake lawyer trying a case is not the real problem, according to many solo and small firm lawyers. The real battle over UPL is when non-lawyers offer advice and forms to help draft wills, bankruptcy filings or divorce papers. In that context, they argue, UPL is a massive problem with dangerous ramifications.

If you need a will, why should you have to pay an attorney hundreds of dollars when online forms exist? If you want a run-of-the-mill divorce, why should a lawyer get involved in your dissolution? Lawyers often charge money for "how-to" information, and the information age is making that business model seem outdated. In some cities, nonlawyers are opening shops where you can come in and they will help you prepare a will form, a bankruptcy filing, or divorce papers.

The courts have even gotten involved in the legal form business. Tired of struggling to interpret and apply the unclear and inaccurate forms brought in by unrepresented couples seeking divorce, the Missouri courts have made "approved forms" available just by asking the Court Clerk. On its face, the Court forms seem to be a helpful tool that can save Missourians the cost of an attorney while allowing the Courts to function more efficiently. If I were expected to adjudicate dozens of "simple" divorces, I would certainly appreciate the assembly line approach.

The problem is that the intersection of law and people is never really simple, and divorce is a major transaction. Anyone who argues that a simple form, court-approved or not, will fully and fairly represent either side's interests is simply mistaken. Solo and small firm lawyers can argue convincingly that in the vast majority of divorces handled by the courts on court-approved forms, one of the parties is losing rights that a lawyer would catch. In fact, by providing forms for pro-se divorces, the Courts are helping some people hurt themselves.

On the other hand, people hurt themselves in court every day, and it's not the court's duty to hold people's hands and make certain they do what is in their own best interest. Hiring the second-best lawyer in the room hurts your chances, too, but I don't think anybody expects the Courts to issue lawyer rankings.

Of course, the issue of fees is at the back of everyone's mind. Feeling sorry for lawyers is a lonely past-time. The popular understanding is that lawyers start at $100,000+ salaries fresh from school, spend the rest of their lives increasing their wealth without heavy lifting or contributing to society, and retire as undeservedly powerful and respected members of the community. So, when we hear about lawyers missing out on a few fees wrung out of working-class divorcees, we tend not to get too choked up.

But the reality is that the economics of solo and small firm practice in store fronts is vastly different than that of large firms in mahogany board rooms. Many law graduates coming out of school have debts of $100,000 or more, and wind up with jobs earning well under $50,000.

The disappearance of "small" divorces threatens the very existence of the "street" lawyer, and those are the lawyers who disproportionately stand up for the average Joe, and create the vast majority of case law that protect citizens' rights. Miranda and Brown v. Board of Education were started in storefront law offices, not mahogany board rooms. But does the occasional Atticus Finch justify preventing poor people from getting divorced without hiring a lawyer they can't afford?

Does the provision of approved forms by Court Clerks constitute the unauthorized practice of law? Of course not. Does the provision of forms with simple advice on how to properly fill them out constitute the unauthorized practice of law? We may be getting into a gray area. If John Doe opens up a shop or a website and advertises that you can come in and he will help you draft your own will or divorce papers, is that the unauthorized practice of law? I believe that it is - but will we find a prosecutor willing to file the case, when the maximum fine is a few hundred dollars?

Would it help if we made the remedies for Merchandising Fraud available in cases of Unauthorized Practice of Law?