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In the recently completed session, the Utah Legislature passed Substitute House Bill 349 and Governor Leavitt signed the bill into law. H.B. 349 directly affects lawyers and
the practice of law. H.B. 349 consists of two parts: (1) it extends the sunset provision on the current unauthorized practice of law statute until May of 2004; and (2) as of May of 2004,
it adopts a very narrow definition of the practice of law that essentially limits law practice to appearances in court. H.B. 349 has drawn considerable attention within our Bar as well as
among lawyers around the country (e.g., ABA Journal article and ABA/BNA article). Although we have attempted to keep the Bar membership informed by email concerning these fast-breaking developments, we have email addresses for only about 64% of the Bar - this is a pitch for the rest of you to send us email addresses.
Now that the dust has settled somewhat, I want to explain some of the background behind H.B. 349,1 what the Bar Commission has done to address it and where we go from here. This whole area is complicated by the fact that there are two subplots occurring within the same play. On one hand is a separation of powers issue about who governs the practice (and unauthorized practice) of law. On the other hand is the question of the delivery of affordable legal services to the middle class. They are distinct issues but have become joined at the hip through a series of events that began in 2001, when the Utah Legislature inadvertently repealed the UPL statute and tied its reinstatement to a request that the Utah Supreme Court study various issues related to the provision of legal services to the middle class. The reinstatement was for only one year.
The Court formed a committee on the delivery of legal services with fourteen members that included two justices, five legislators, and representatives of the Bar and the public.2 The committee held regular meetings and submitted its report to the Court in September of 2002. The committee addressed the study topics identified by the Legislature and made various recommendations.
In the Fall of 2002, the Court acted on a pending Bar petition to revise and update the Rules of Lawyer Discipline and Disability. These are the rules that the Office of
Professional Conduct and the Committee on Ethics and Discipline follow. The Court took the opportunity to modify Rule 6, titled "Jurisdiction," to rename section (a) as
"Persons practicing law" and to state that the Court's disciplinary jurisdiction would include, in addition to lawyers, "any other person not admitted in this state who
practices law or who renders or offers to render any legal services in this state." The new Rule 6 in effect overturned the Court's 1997 opinion in Utah State Bar v. Benton Petersen in which the Court stated that it governed the practice of law and the Legislature governed the unauthorized practice of law.
The change in Rule 6 of the Rules of Lawyer Discipline and Disability spawned the introduction of H.B. 349. Under new Rule 6, a UPL statute appears to be unnecessary since the
Court, under its rulemaking power, could order injunctive relief to prohibit the unauthorized practice of law.3 The question of who governs the practice of law had been considered, but left unresolved, by the Court's committee on the delivery of legal services. The Court's clarification by rule took certain legislators by surprise and apparently was viewed as an intrusion upon power, viz. the power to govern the unauthorized practice of law, which the Court had previously stated belonged to the Legislature. The subject of separation of powers between the judiciary and the Legislature has been somewhat of a sensitive topic in recent years in other contexts such as the Judicial Conduct Commission and various initiatives.
H.B. 349 was originally filed only as a bill number whose content was not disclosed until later in the session.4 The House held hearings. The Bar's general counsel and the chair of the Bar's UPL committee appeared at the hearings and opposed the bill on consumer protection grounds. The bill nonetheless passed the House by a resounding margin of 57-15. The Bar then sent letters to members of the Senate explaining that it opposed the bill on both constitutional and consumer protection grounds.5 By a smaller margin of 17-11, the Senate passed the bill.
At the Bar's recent mid-year meeting in St. George, the Bar Commission unanimously
voted to seek Governor Leavitt's veto of H.B. 349 and began notifying the Bar's membership of that decision. At the same time, the Bar Commission met with Representative Steve Urquhart,
R-St.George, the sponsor of H.B. 349. Rep. Urquhart and House Majority Leader Greg Curtis, R-Salt Lake, served on the Court's committee on delivery of legal services and have been key
players on these two issues since 2001. As a result of these constructive discussions, the Bar Commission and the bill's sponsors struck an agreement: The Bar Commission would not seek
the Governor's veto and would undertake four specific measures associated with increasing access to and affordability of legal services in exchange for the sponsors' agreement in the next
legislative session to introduce legislation to repeal the narrow definition of the practice of law and seek their colleagues' support of the repeal. The specifics of the agreement were
reduced to writing and signed by representatives of each side. A copy of the agreement appears on the Bar's website.
Once the Bar Commission learned that the sponsors' primary
purpose of enacting the narrow definition of the practice of law was to stimulate the judiciary and the Bar to improve access to the courts for the middle class, we were persuaded that an
immediate resolution was desirable. Regardless of whether one agrees with the method lawmakers employed to bring about change, it was an available option and one that has been used in
other contexts.
We sent an email to our membership explaining the agreement between the Bar Commission and the bill sponsors. We appreciate the feedback from members who took time
to respond. Many favor the resolution, others question whether we can rely on the bill sponsors to follow through. The Bar Commission cannot guarantee that the narrow definition of the
practice of law will be repealed. We are counting on the good faith of the bill sponsors to uphold their part of the agreement, just as they are counting on us to do the same. If for
whatever reason the repeal is not sought or is unsuccessful, then the option will continue to exist in the future as it exists now to let the Utah Supreme Court decide. If the definition
is not repealed, the Bar Commission (or perhaps other interested persons) could challenge the constitutionality of H.B. 349 once it becomes effective in May of 2004.
Why wasn't a
constitutional challenge pursued now? Two main reasons: First, the agreement offered the prospect that the highly restrictive definition of the practice of law would be voluntarily
repealed. Second, it allowed us to remove ourselves from the middle of a separation of powers dispute and concentrate on areas of common interest. The Bar has no interest in being the
catalyst in a real or perceived separation of powers dispute between two co-equal branches of government. The dynamics of such a context are fraught with uncertainty and risks. In short,
we don't want to go there if we don't have to.
What four things has the Bar Commission agreed to do? The Bar Commission agreed: (1) to support increasing limits in small claims
courts to $10,000; (2) to formulate recommendations for appropriate circumstances in which uncompensated advice would be allowed; (3) to develop and promote the appropriate unbundling of
legal services by seeking rule amendments and through our own internal policies; and (4) to explore how parties in small claims actions might be represented by uncompensated non-lawyers.
We understand that the issue of raising the small claims court limit has two sides to it. We are in the process of creating a task force to study the issue and make recommendations as to
how any changes in legislation may best address the needs of the middle class and the processes involved in implementing increased limits.
The Bar Commission supports efforts to
assure greater access to competent and affordable legal services by the middle class. It is our obligation to the public to do so. This also presents an opportunity to our members. The
middle class represents a significant, largely untapped market for legal services. In a recent President's Message about the profile of our Bar membership, I pointed out that
approximately 35% of our membership consists of solo practitioners and small firms (defined as 1-3 lawyers). Many of these lawyers - particularly those in certain fields such as personal
injury, bankruptcy, and family law - are under-used by and well positioned to serve a larger segment of the middle class. Our challenge is to match available lawyers with members of the
public who need competent legal services. If we are successful in that endeavor, a win/win situation results.
To successfully match lawyers with potential clients, we need to help
the public become more knowledgeable consumers of legal services. For the past year, a Bar task force under the direction of our President-Elect, Debra Moore, has been studying various
alternatives. Debra reported the task force's work in an article in the December edition of the Utah Bar Journal. The task force is scheduled to make its report and recommendations to the Bar Commission at our May meeting.
The Utah State Bar will continue to be proactive, not reactionary, in shaping solutions on issues of access to and affordability of legal services. We want to work with the Court,
legislators and other interested persons to improve the delivery of legal services. I urge you to familiarize yourself with these issues. As a Bar Commission we will keep you posted on
developments. We welcome your input.
Footnotes
1.
Those desiring more information can turn to the Bar's website, www.utahbar.org, under the title H.B. 349, the Legislative Definition of the Practice of Law and Access to Justice, to see the full text of some of the materials referenced in this article.
2. For a more detailed account of the committee's work, see the President's Message in the December Utah Bar Journal.
3, Unlike the UPL statutes in some state, Utah's statute did not impose criminal penalties.
4,
Prior to a legislative session's deadline for filing bills, a legislator may open a bill file and reserve a number with only a short title and no language and thereby preserve the right to fill in language later in the session. This empty bill filing is called a "Box Car."
5. A copy of a letter sent to senators can be found on the Bar's website.
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