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If you haven't yet focused on developments surrounding the unauthorized practice of law in Utah, now's the time. The Supreme Court Advisory Committee on the Rules of Professional Conduct
has recommended adoption of a proposed rule that creates safe harbors for non-lawyers who practice law. Most of us probably assume the practice of law is what lawyers, and only lawyers,
do. In a distinct departure from that assumption, the proposed rule defines the practice of law as representing others by applying law to their specific facts and circumstances -
regardless of who does it. The proposed rule starts from the premise that only licensed attorneys may practice law, but then creates numerous exceptions that effectively create safe
harbors for non-lawyers.
Many of the exceptions merely recognize the reality that a great deal of law practice already is conducted by non-lawyers and that much of that practice
is virtually impossible to control. For example, the internet has made abundant legal information and self-help resources available to the public from sources around the globe. More
fundamentally, creating safe harbors reflects sound public policy whenever the public benefit from access to legal assistance by non-lawyers outweighs the risk of harm.
Determining when those conditions exist is not a job for the faint of heart. As noted by a task force charged with making recommendations for a new definition of the practice of law in
Texas, "[P]ublic and lawyer opinion on UPL issues is driven by deep-felt divisions . . .that . . . make impossible - in the short term - the forging of a consensus, even among
lawyers, as to how, or even whether, the regulation of the unauthorized practice of law should be changed. These divisions of opinion are made even more problematic by the rapid changes
now resulting from the computerization and internationalization of American life and business, which changes will necessarily occur as well in American legal practice."
Often, the lack of consensus arises from a failure to consider both sides of the equation. Some tend to focus on the risk of harm from unlicensed providers without considering cost and
other barriers to access to licensed attorneys. Others consider only the cost while minimizing the risk of harm. As in Texas, little consensus may emerge on these issues in Utah. As
revolutionary as the proposed rule may seem to many, it leaves some questions unresolved. For example, the rule doesn't address whether minimal regulation, such as certification, could
permit non-lawyers to provide routine legal services with minimal risk to the public. For example, the Arizona Supreme Court has adopted regulations for document preparers and the
Washington Supreme Court regulates Licensed Practice Officers who provide closing and escrow services. Nor does the rule create a process for determining when it might be appropriate to
adopt additional safe harbors given rapid changes in the delivery of legal services. In adopting a similar rule, the Washington Supreme Court created a Practice of Law Board whose charge
includes "making recommendations regarding the circumstances under which non-lawyers may be involved in the delivery of certain types of legal and law-related services."
Whatever the specifics of the final rule, the basic concept of creating safe harbors permitting non-lawyers to provide limited legal services when the benefits of increased access
outweigh the risks should prevail. The comment period will be important in identifying what those benefits and risks are in particular circumstances. The most helpful comments, however,
will be those that consider not just the potential harm or the increased access, but both.
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