http://www.nolo.com/texas/UPL_explained.html
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.
http://www.nolo.com/texas/index.html
http://www.nolo.com/texas/cases.html
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)