George Leef on If We Want Creative Destruction, Destroy Unauthorized Practice Prohibitions

totmauthor —  20 September 2011

I may have missed it, but a topic that I don’t think has come up in the discussion thus far is unauthorized practice of law prohibitions. If we want to allow the free market’s discovery process to work – finding new modes of delivering services that serve consumers better than the old ones – we must get rid of unauthorized practice prohibitions.

Those vague laws can and often do ensnare anyone who assists anyone else in something that the bar association thinks should be its “turf.” Here’s a revealing case I learned about quite a few years ago when I lived in Michigan.

A man’s daughter had gotten involved in an extended custody battle with her ex, but she had lost her job and could not afford a lawyer to draft the responses necessary if she was to continue the fight. So she asked her father, an accountant, if he could help her. Why not, he thought – it can’t be all that hard. He went to the library at the Cooley Law School in Lansing and asked where he could get a book with the appropriate forms. He got them, filled them out, and sent them in. No problem – or so he thought.

A few months later he was informed by the Michigan State Bar’s unauthorized practice committee that by filling out the forms and submitting them, he had violated the state’s unauthorized practice of law statute.  The State Bar filed suit against him, demanding not only that he never do that heinous act again, but that he pay the Bar back for its expenses in investigating and suing him.

Appalling.

Other people have felt the wrath of similar committees because they offered low-cost services by cutting out the middleman (the lawyer) who had been billing clients at high rates for work the individuals (secretaries or paralegals) had done themselves.

Bar associations don’t win all the fights they pick. They wanted to stop the publication of self-help law books, going way back to How to Avoid Probate. They lost in Arizona when they tried to muscle in on real estate closings by declaring that they entailed “the practice of law” and thus required an attorney’s presence. (That led to an amendment to the state constitution declaring otherwise.) But these battles shouldn’t happen at all. Individuals ought to be free to choose for themselves whether they want to do business with a licensed practitioner who has been to law school and passed the bar exam, or someone else.

If licensed attorneys and their bar associations want to try persuading consumers that they are much better off going with them, that’s fine. They should not, however, be allowed to scare away or kill off any competition through actions for “unauthorized practice.”

7 responses to George Leef on If We Want Creative Destruction, Destroy Unauthorized Practice Prohibitions

  1. 

    Right on! Della

    http://onforb.es/qdNXhO

    • 

      Exactly. I worked for lawyers and judges for eighteen years – I did all the work and they got all the money. When the Cramer division came down in 1976, I opened my business, Divorce Consultants in Kalamazoo, Michigan, and have never had one complaint filed against me with the State Bar by a client. I did sue the Bar in 1978 and they sued me in 1980 (lots of great publicity). Every ten years or so I get a letter from them with threats, which I round file. As long as your clients sign an acknowledgment that you are not an attorney and do not have a law degree, you are exercising your Freedom of Speech. I now have helped thousands of people in all counties in Michigan and get referrals from the courts, lawyers, judges, etc. I also have an A rating with the BBB. I have never seen any statement in any law book that says Patricia Willis cannot read this book. I have a wonderful client base, many of whom simply do not like lawyers, regardless of what they charge. There have been cases, unfortunately, where I had to appear on various occasions, and if I got the wrong judge, no matter what I said, I was going to lose. I am very proud of my career and although I am in the process of trying to retire, I am delighted when I visit a courthouse, for example, Kalamazoo, and the clerks literally walk the people through the process. When I started, they would not even tell you the filing fees for fear of being charged with practicing law. I always think of my favorite quote, “Dare I die without making a change for humanity” and although I lost many hours of sleep when I first opened, it was all worth it. I just cannot understand why there are not more people involved in a like business. Many have tried, but the State Bar writes them a letter and they fold up business!
      It has been a very rewarding and challenging business and in the future, hopefully, there will be many more that enter such a business.

      • 

        Good comment. I wondered about what would happen if the accountant ignored the threat letter from the Bar.

        Do states have statutes against lawyers sending letters with threats of frivolous suits? Such statutes would be useful, since that kind of letter is a form of fraud which does fool many people and it is really worse than actually filing a frivolous suit. If a frivolous suit is filed, the judge can dismiss it; if it is just threatened, it can fool the unsophisticated defendant.

      • 

        Have any tests cases gone to *federal* court on whether unauthorized practice of law statutes lack a rational basis or violate the 1st Amendment or other federal constitutional provisions?

      • 

        That is very true, many people panic when they receive a letter on a attorney letterhead. Best place to check would be Michigan Court Rules and there is a section in the back of the book that sets out guidelines for professional conduct of lawyers and judges. If more people would check on the sites and fill out grievances against lawyers and, especially judges, who cringe at the mere mention of filing a complaint with the Judicial Tenure Committee, which, up until a few years ago, consisted of only lawyers and judges on these panels and after much public outrage, there are lay people on these boards and we are seeing more success in filing grievances. People also are unaware that they can view any file in any court (other than Juvenile Court), make copies of any documents they might desire and also have access to the Law Library in every county in Michigan. Years ago, you had to be an attorney to use the law libraries and I was successful in changing that rule in several counties. We pay for those law books, just like we pay for the services of the court employees and are entitled to be treated with patience, compassion and respect and if not, contact the State Court Administrator’s Office. Too many people are intimidated by the court and in order to see the changes we are seeing, people must unite, instead of leaving such tasks to a few – go get them folks!

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