The First Amendment and unauthorized practice of law

Larry Ribstein —  19 July 2011

I recently discussed the policy issues regarding litigation against LegalZoom for unauthorized practice of law (as well as noting my potential interest in this litigation).  A recent paper analyzes the legal issues:  Catherine Lanctot, Does LegalZoom Have First Amendment Rights? Some Thoughts About Freedom of Speech and the Unauthorized Practice of Law.  Here’s some of the abstract:

The article first sketches some potential problems with the reflexive assumption that LegalZoom and its fellow travelers are engaged in the unauthorized practice of law. Even assuming that the practice of preparing routine legal documents for consumers runs afoul of many unauthorized practice statutes, however, there remains an open question of whether these statutes may themselves interfere with First Amendment guarantees. In particular, to the extent that these statutes broadly sweep vast amounts of law-related speech within their scope, they may infringe on free speech rights. The article sets forth some of the possible First Amendment arguments available to document preparers, without extensive elaboration, to call attention to the possibility that they may be raised in defense to an unauthorized practice prosecution. It concludes with a caution about aggressive pursuit of these online document preparers without careful consideration of the possible risks involved. A successful First Amendment challenge to an unauthorized practice statute could have repercussions far beyond the world of LegalZoom.

With respect to the “caution about aggressive pursuit of these online document preparers,” Professor Lanctot concludes:

The legal profession has deliberately left itself free to define a host of activities as “unauthorized practice” on an as-needed basis. This flexibility may have served the bar’s regulatory needs in the past, but it could prove fatal to enforcing unauthorized practice laws in the face of a serious First Amendment challenge. The broad and standardless definition of “practice of law” could then collide with the requirement of specificity and narrow tailoring that underlies many aspects of relevant First Amendment doctrine. Whether or not these First Amendment arguments may succeed ultimately in the courts is less important than the fact that they have a sufficient basis to complicate any action for unauthorized practice.

In other words, by arguing that any individualized advice about the law by a non-lawyer is illegal, the bar has exposed all of this regulation to the risk of invalidation.

Of course the bar might think this strategy is worth the risk because the alternative is the horrors of free competition.  But in the end, the bar may have little choice.  Law’s information revolution, and the general forces of competition and deregulation (particularly including the UK’s Legal Services Act) are pressing on all fronts whatever the bar does.

Waking the First Amendment bear in LegalZoom litigation could have implications not only for unauthorized practice laws but for all kinds of other regulation of commercial speech, particularly including the securities laws.  See my and Butler’s Corporate Governance Speech and the First Amendment, 43 U. Kans. L. Rev. 163 (1994) and The Corporation and the Constitution.

I would add that the majority’s broad reasoning in Citizens United has makes this a particularly good time to raise these arguments. See my recently published article, The First Amendment and Corporate Governance.

The political and market pressure to deregulate and thereby lower the costs of legal services may make this regulation a particularly inviting target for First Amendment claims.  In contrast with Citizens United, a case on the constitutionality of unauthorized practice could be portrayed not as big corporations against the little guy, but as the little guy against a powerful entrenched interest group of greedy lawyers.  This could make the claim a useful lever to bring down large chunks of regulation of truthful commercial speech.

Larry Ribstein

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Professor of Law, University of Illinois College of Law

23 responses to The First Amendment and unauthorized practice of law

  1. 

    America is awash in lawyers. With a population of a bit over 300 million people, we have a million lawyers. It’s absurd to think that one out of every 300 men, women and children in the nation is a lawyer. They’ve corrupted the system to the point that we’re no longer a nation “of, by and for the people” but instead a nation “of, by and for the lawyers.”

  2. 

    I became an aerospace engineer without benefit of a degree. But you need a degree to be a lawyer?

    Right.

    • 

      Agree with you. The guild mentality defenders use the “we need to protect you” excuse (it’s a pretext, not a reason) to punish competitors so they can charge more. We have a monopoly on medicine (the AMA) and people are looking up their asses for answer to the question “why is medicine so fucking expensive these days?”. LOL.

  3. 
    foo passed the bar 25 July 2011 at 7:29 pm

    If you really think that 1st amendment Free Speech has anything to do with the pofessional regulation of lawyers, or those who would pretend to be lawyers, then you have no business discussing the law.

    • 

      Why not? What rational, factual, principled reason is there to magically exclude the activity of a lawyer (speech, mostly) from being considered speech protected under the 1st amendment?

      Note I did *not* ask for legal reasons. Please refrain from giving them.

    • 

      “If you really think that 1st amendment Free Speech has anything to do with the pofessional regulation of lawyers, or those who would pretend to be lawyers, then you have no business discussing the law.”

      You might want to go read Bates v. State Bar of Arizona. Professional regulation does not pre-empt the First Amendment.

      Reframing the question might help you understand why the First Amendment is a live concern here. One thing the First Amendment most certainly protects is the right of citizens to discuss what the laws of the land mean and what burdens they place on citizens. If you start from that direction, it’s hard to say where merely commenting the laws ends and practicing law begins.

  4. 

    You don’t want to live in a society that doesn’t strictly regulate the practice of law any more than you would want to live in a society in which anyone with a knife and a bottle of whiskey could be a surgeon, though there is plenty of room for reform in training, mentoring, apprenticeship, and certification of specialized experience for lawyers.

    • 

      Why not? What’s wrong with allowing anyone to be a surgeon? It’s wrong to allow FRAUD, for sure, but that does not mean that people should be punished for either offering or seeking for medical service from anyone, even if they are not members of some guild or club. This guild mentality that “Only this group X may be allowed / has a monopoly on service W” makes no rational sense whatsoever.

    • 
      Balthar the Rhetoritician 26 July 2011 at 7:32 am

      Oh, absolutely… I prefer my chemically dependent surgeons have access to the narcotics cabinet.

      There’s apparently plenty of room for reform in mentoring internet posters on avoiding straw horses.

      • 

        So what will be your excuse when prohibition ends?

        BTW you might consider that Wm. Halsted the founder of modern surgery was a life long heroin addict. Maybe you should be looking for a surgeon with a habit.

      • 

        Brilliant response :-)

  5. 
    What? They didn't teach you this in school? 25 July 2011 at 6:44 pm

    The First Amendment is a prohibition on the misuse of federal power. It does not grant the citizen rights. RTFM, author! http://topics.law.cornell.edu/constitution/billofrights#amendmenti

    The granting of rights to those “within the [federal] jurisdiction” comes from the 14th Amendment. http://www.law.cornell.edu/anncon/html/amdt14a_user.html#amdt14a_hd9

    Whenever you hear the phrase “your constitutional rights” be assured that any right you had as a citizen of your state have been removed from you, and you are being granted an inferior set of contractual “rights” as a citizen of the US instead, with no recourse to the original document and its famous ten amendments.

  6. 

    Under current Bar rules…Abraham Lincoln could not have practiced law, nor would John Jay, Willima Cushing, John Blair, Jr., John Rutledge, James Iredell, Thomas Johnson, William Patterson, Samuel Chase, Oliver Ellsworth, Bushrod Washington, Alfred Moore, John Marshall, William Johnson, Henry Brockholst Livingston, Thomas TOdd, Gabriel Duvall, Joseph Story, Smith Thompson,…think about it.

    Now, what do these men have in common? Not one went to law school, but for some reason that didn’t prevent them from serving on the US Supreme Court. Now, can someone please explain to me why reading the law precludes one from gaining understanding of law….???

    Perhaps, Will Shakespeare was right…”first thing we do…is kill all the lawyers…”

    Rich Vail
    Pikesville, Maryland
    The Vail Spot dot Blogspot dot Com

  7. 

    What about the unauthorized practice of medicine?

    • 

      It should become authorized, of course, due to the principle that it is wrong to punish peaceful voluntary and informed consensual relationships.

  8. 

    Let them do it. I have no experience with LegalZoom, but I have had experience with folks who relied on realtors and “escrow companies” in Washington State operating under our “limited practice rule” that allows agents to prepare real estate documents. I have made thousands and thousands in fees fixing problems that could have been avoided by a five-minute phone call between attorneys for buyer and seller before the deal closed. And in New York State, where attorneys are used in virtually every residential real estate deal, they are cutting each others throats, representing parties for 4 or 5 hundred dollars.

  9. 

    Wasn’t there a plain language movement for legal docs a number of years ago, that was squashed by the legal profession in terror that their costly magical reading of the legal runes would no longer be required for anything but the most complex cases?
    This is coming for the medical profession also. The internet, computers, and technology for self testing, or even the fact that I have a right to get an MRI performed if I so desire without a gatekeeper between me and someone I am making a transaction with, are all going to come under constitutional scrutiny, and if justice prevails, freedom will win.

  10. 

    Another thing I’ve wondered about, and may litigate on some day, is whether unauthorized practice of law can apply to volunteer advice by people who do not hold out that they are lawyers. Maybe that is what LegalZoom does; I don’t know. This could be part of a for-profit business even, as an intro offer or funded via advertising for shampoo. If anyone knows of case law on that subject, I’d be interested—erasmuse@indiana.edu.

    • 

      It absolutely does apply to people who state clearly that they are not lawyers. For example, the We The People chain of free lance paralegals / formfillers were clear at all times that they were not lawyers. Some of what they did, however, looked to regulators and private litigants like the practice of law. The chain ended up radically downsized and in Chapter 11 bankruptcy, and the litigation related to UPL was one of the causes. LegalZoom is also quite clear they provide forms and don’t purport to be lawyers, but so far that hasn’t proved a sufficient distinguishing factor.

  11. 

    I’ve wondered whether the Bar’s requirement that lawyers go to law school (as well as pass the bar) could survive the “rational basis” or “arbitrary and capricious” standards. The same question could be asked of requiring Bar admission for most of what lawyers do—just not for appearing in court — solicitor stuff as opposed to barrister stuff.

    • 

      Last I heard (and my info may be dated), a JD degree requirement is a state-by-state sort of thing. In many states, the only rule is that one must pass the bar exam, with no requirements on how the examinees choose to learn to do so.

      This ties in with the actual, traditional purpose of a lawyer – a person who represents those who are too illiterate to understand a simple set of “Hammurabi’s Code” type laws; the presumption is that everyone else who has even a modicum of education can defend themselves. Thus, in a “just” world, there should be perhaps slightly less lawyers than firefighters (about a 1:10000 ratio is the standard for most urban areas).

      Sadly, we’ve fallen far, far beyond that basic principal into the depths of a hellish fight for monopoly and rent-seeking. Thus ends Western Civilization, I suppose.

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