What is the unauthorized practice of law?
The unauthorized practice of law occurs when a person who is not a lawyer engages in the practice of law. Every state but Arizona has a statute or Supreme Court rule (or both) prohibiting the unauthorized practice of law. Most of these laws were passed in the 1920s and 30s when lawyers sought to protect their privileges from competitors. For more on this history, see American Lawyers, Richard Abel, (Oxford University Press, 1989)
How does Texas define the practice of law?
For all practical purposes it doesn't. Section 81.101 of the Texas Government Code essentially defines it as "any service requiring the use of legal skill or knowledge" and then gives the courts authority to determine on a case by case basis whether "other services and acts not enumerated [by the statute] may constitute the practice of law."
In other words the statute is so vague that it says, in effect, "if any activity of a non-lawyer (for example, advising a football player on whether to sign a contract) looks to any Texas judge (who is almost sure to be a lawyer) like something a lawyer should appropriately do, the non-lawyer is guilty of UPL."
Is the Texas legal response regarding unauthorized practice different from that in other states?
Yes. Other states have limited themselves to going after people and businesses who sell services to the public (for example, divorce form preparation services). Texas is the only state where self-help law publications such as those produced by Nolo Press have been made the subject of regulation under unauthorized practice of law statutes (unless, of course, the publications are written or approved by Texas lawyers). Fadia v. Unauthorized Practice of Law Committee (5th Dist. Ct of App, 1992).
Has any court considered the issue of whether banning self-help law books violates the First Amendment to the U.S. Constitution?
Yes. In the leading case on the subject, the New York Court of Appeals ruled in 1967 that the publication and distribution of Norman Dacey's book How to Avoid Probate could not constitutionally be prohibited under New York's unauthorized practice statute. Dacey v. New York County Lawyers' Assn, 234 N.E.2d 694, reversing on the basis of the dissent in 283 N.Y.S.2d 984.
In the court's words:
"That it is not palatable to a segment of society which conceives it as an encroachment of their special rights hardly justifies banning the book. '[It] is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions' (Bridges v. California, 314 U.S. 252,270). Free and open discussion or even controversy could lead to reforms, if needed, or improvement where desirable. Books purporting to give advice on the law, and books critical of law and legal institutions have been and doubtless will continue to be published. Legal forms are available for purchase at many legal stationary stores. Unless we are to extend a rule of suppression beyond the obscene, the libelous, utterances of or tending to incitement, and matters similarly characterized, there is no warrant for the action here taken."
What are the possible consequences of engaging in UPL in Texas?
The courts may issue an injunction prohibiting the activity found to be the unauthorized practice of law. In this case, the court could prohibit Nolo from making its books and software available to Texas residents. By extension, this could mean that Texas bookstores and libraries could be ordered not to stock Nolo publications.
Is there a history of consumers being harmed by the unauthorized practice of law?
No. Study after study, including a seminal article by Stanford Law Professor Deborah L. Rhode ["Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions," Stanford Law Review Vol 34:1 (1981)] has failed to find consumer harm caused by UPL. These same studies have concluded that virtually all complaints about UPL come from lawyers protecting their turf.
Who knows more about UPL?
For more in depth information about UPL enforcement in Texas and elsewhere, contact HALT, An Organization for Legal Reform, 1612 K St. NW Suite 510, Washington D.C., 20006 (202) 887 8255.
Jona Goldschmidt, A Brief History of the Unauthorized Practice of Law, in 1994 Survey and Related Materials on the Unauthorized Practice of Law/Nonlawyer Practice (Chicago: Am. Bar Assoc., 1996)
Barlow F. Christensen, The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors—Or Even Good Sense?, 1980 Am. Bar Found. J. 159 (1980)