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I am writing this article the second week of September. By the time you read it in the October Bar Journal, you may know more about this issue than I do now, since much is likely to happen
between now and October 1. My hope is that I can provide background information for Bar members so if the story hits the media fan, everyone will understand how this problem developed
historically and what our options as a profession are. Let me say at the outset that this is a rather convoluted story, as the legislative process is a convoluted process. This issue is
important for our profession, however, because I believe what is happening in the legislature now on the issue of unauthorized practice is symptomatic of deeper legislative
dissatisfaction with the way the legal profession is regulated. I tell this story from my personal perspective which is somewhat unique, since I am a member of the legislature as well as
current Bar President.
The issue involves the unauthorized practice of law statute which was repealed by the legislature in the general session last winter. This is how this all came about: Prior to 1986, there
were in effect a series of statutes relating to the practice of law, one of which authorized the Bar to obtain injunctions against those practicing law without a license. In 1986, the
Utah Constitution was amended to assign the regulation of the practice of law to the Supreme Court. This was in recognition of the principle that lawyers are officers of the court, and as
a matter of separation of powers it is appropriate for the court to regulate the practice of law. The Supreme Court, in turn, assigned the day to day regulation of lawyers to the Bar by
court rule. Among the rules adopted is a rule authorizing the Bar to bring civil actions for restraining orders against non-lawyers who are engaging in the unauthorized practice of law.
This court rule is identical to one of the statutes in effect prior to the constitutional amendment.
Although the old statutes are no longer effective because of the constitutional amendment, they were not repealed. About a year ago the Research and General Counsel Office of the
Legislature requested that Senator Terry Spencer sponsor legislation repealing the statutes as part of a general statutory clean-up. He agreed to do so. The legislation passed and all of
the regulation of law statutes were repealed, including the statute relating to the unauthorized practice of law.
Shortly after the legislative session, it came to the Bar's attention that an unauthorized practice statute may be necessary after all. In a 1997 case, Board of Commissioners v. Petersen,
937 P.2d 1263 (Ut 1997), the Utah Supreme Court had ruled that the unauthorized practice of law (in distinction to the practice of law by lawyers) is an area of executive branch authority
rather than judicial authority. Although (with due respect to my good friend Justice Russon) the logic of this is rather questionable, there appears to be at least some question about the
Bar's legal authority to proceed against the unauthorized practice of law in the absence of a statute. Since the Governor intended to call a special session of the legislature in June,
this seemed a good time to take care of the problem. Governor Leavitt agreed to put the re-enactment of the statute on the Call of the special session, and Senator Spencer agreed to
sponsor it.
At this point, let me digress and explain exactly how the Bar prosecutes unauthorized practice complaints. Unauthorized practice of law is not a crime, but the statute and an identical
court rule authorize the Bar to proceed against unauthorized practice by civil action. We have an unauthorized practice committee, chaired by Marsha Thomas. This committee meets monthly.
They will get about 5 to 8 complaints each month. Although there are various kinds, the most common recently is in the immigration area. There are a number of people who characterize
themselves as "notarios" who take fees from people with the promise to help them get green cards or other immigration related services. Frequently, they get no services in
return and sometimes the wrongdoer absconds with vital original documents. One notario even charged $600 for assistance in getting a driver's license, claiming that the services of a
notario were necessary to get a driver's license. Other types of complaints relate to persons who assume to provide legal services and do so in such a manner as to cause serious harm to
their "clients." Among these are so-called "constitutionalists" who advise people not to pay their taxes. Other complaints relate to disbarred or suspended lawyers who
continue to practice, and lawyers who are admitted in other states and practice in Utah without being admitted here.
The committee screens the complaints and assigns them to the members for investigation. Some of the complaints are dismissed as not well founded. Sometimes the problem can be solved with a
phone call. In the more serious cases, the committee asks the person to sign a cease-and-desist order. In a few cases where the violation is serious and the person will not sign a
cease-and-desist order, or if the person has signed a cease-and-desist order in the past and this is a subsequent violation, the committee asks the Bar Commission to authorize outside
counsel to bring a civil action seeking an order from the court. One of the criteria the committee applies is that there must be a victim. In other words, if a non-lawyer performs
services that are arguably within the practice of law, but the "client" is not complaining, the committee does not take the complaint further.
Most of the work is done by committee members who serve as volunteers. These committee members donate hundreds of hours each year to this service. In addition, we pay from Bar dues for
administrative expenses and we pay counsel on the cases that are filed with the court. Last year we spent $50,000 on this. In my opinion this was entirely for public service. This is not
a "turf-protection" issue. This is not an area where the vital interests of lawyers are at stake, except to the extent that we don't like crooks ripping people off and claiming
to be lawyers. This is not an area where non-lawyers are doing good legal work and taking business from lawyers.
Now I return to the story of what happened in the special legislative session. The special session was called primarily to address governance of the Applied Technology Centers which was
quite controversial. The unauthorized practice statute and the other half dozen bills on the Call were considered housekeeping issues which were not expected to generate any dispute. As
of the morning of the special session there was no indication that there would be a problem with the unauthorized practice bill. The Bar's lobbyist, John T. Nielsen, was at the session
and had no indication that there was going to be any problem. The bill came up in the Judiciary Committee and was passed out favorably without any real discussion or opposition. Senator
Spencer introduced it in the Senate that afternoon and it passed unanimously. It was then sent to the House for action.
The procedure in the House is that bills passed in the Senate are referred to the Rules Committee. The Rules Committee meets and prepares a report, which ordinarily would be that the bills
referred to Rules are sent to the House floor for final action. As the Rules Committee returned from its meeting, one of the members came to my desk with this shocking news: he said the
House Republicans had voted in their caucus to hold the unauthorized practice bill in order to "send the Bar a message." I asked what exactly the message was and he said some of
the House Republicans were concerned about the overly zealous prosecution of bar complaints against lawyers and this was a way to "bring the Bar to the table." I was astonished.
I naively assumed that most of the House members were unaware of the purpose of the unauthorized practice statute, and how leaving a vacuum of enforcement would punish innocent people who
are ripped off by unscrupulous scam artists. Therefore, when the Rules Committee made its report, which was a recommendation that the other bills passed by the Senate be referred to the
House floor, I made a substitute motion that all of the bills referred to Rules (including the unauthorized practice bill) be referred to the floor for action. In support of my motion, I
explained how the bill was not anything new, but had been in effect for many years, and how it was intended for consumer protection. My eloquent explanation, however, was not persuasive
enough to overcome party discipline. My motion failed on almost straight party lines with every Republican but one (Rep. Bradshaw) voting against and all Democrats but one (Rep. Morgan)
voting for.
Since I am not a Republican, I really can't say first hand what happened in the Republican caucus to motivate this startling action. In the days following the special session I spoke to
several Republican legislators about this, as did John T. Nielsen and David Nuffer. In substance we were told that the concerns raised in the caucus were: 1) Lawyers can be disciplined
for criticizing judges, which violates the lawyer's right to free speech; 2) The Office of Professional Conduct does not afford lawyers due process rights and is overly zealous in
prosecution of bar complaints; and 3) Non lawyers should be able to do such things as represent their children in court on traffic tickets and the like.
Shortly after the special session, the Bar's unauthorized practice committee suspended its enforcement activity. Since June, complaints are answered with a polite letter explaining that we
are unable to help consumers at this time.
About a week after the special session, I got a call from the Speaker of the House, Martin Stephens. He told me that he wanted to appoint a committee of House members to meet with
Representatives of the Bar. I told him that I didn't want to be involved directly, since I am both a Representative and President of the Bar. I told him that I would appoint a committee
to represent the Bar, which I did. It is chaired by David Nuffer. Speaker Stephens appointed a committee of legislators, which is chaired by Rep. Steve Urquhart, a lawyer from St. George.
David Nuffer and Rep. Urquhart met several times and have refined the issues. The legislative committee is apparently not interested in pursuing the concern that lawyers may be disciplined
for criticizing judges, since this concern is somewhat imaginary. Also, the concern about overzealous prosecution of bar complaints, although still a concern of many legislators, is not
related to the unauthorized practice issue and the legislative committee does not want to address it at this time.
On the other hand, Rep. Urquhart has expanded his inquiry into issues that relate to the question of what sorts of things should non-lawyers be allowed do which may seem to encroach on the
practice of law. For example, Rep. Urquhart approached the Utah Association of Certified Public Accountants and asked them for a statement as to their position as to what the CPAs believe
they should be able to do in areas that may have traditionally been considered law practice. The CPA organization sent Rep. Urquhart a very nice letter, which in essence says that the two
professions have engaged in extensive dialogue in the last year in the area of multi-disciplinary practice, and that we are continuing to work together to form a common understanding as
to what are legitimate roles.
The two committees met on September 11. At that meeting Marsha Thomas explained the workings of the unauthorized practice committee. David Nuffer explained the history of the unauthorized
practice statute. The CPAs spoke in favor of re-enacting the statute, but expressed concern that the statute is somewhat vague and it would be better if there was a more definite
definition of what non-lawyers could and could not do. Brent Manning spoke on behalf of and Justice for All about the efforts lawyers are making to make legal services available to those
who cannot afford them. It was apparent from the questions and discussion at the meeting that the concern of the legislative committee has now become the availability of legal services,
rather than any of the concerns that were expressed in the days immediately following the special session and the repeal of the unauthorized practice statute.
The outcome of the meeting was that the committee is recommending the enactment of a new unauthorized practice statute which will "sunset" in two years. The language of this new
statute has not been finalized at the time of this writing. The legislature is expecting the courts to provide a plan to make legal services more available or establish mechanisms to
allow people to more easily access the legal system without the help of attorneys.
A special session to consider re-apportionment is tentatively set for September 26. The committee's proposal will probably be placed on the Call for that special session. If it is not
placed on the Call or it is not enacted in the special session, the Bar Commission will consider petitioning the Supreme Court to overrule or distinguish the Petersen decision and allow
the Bar to proceed pursuant to the court rule. Depending on how the final language of the new statute is drafted, the Bar may also challenge the new statute as a violation of separation
of powers and ask the Supreme Court to authorize proceeding against unauthorized practice pursuant to court rule.
As I said, I believe strongly that this is only a symptom of the deeper legislative concern with lawyers in general and regulation by the Bar under authority of the court specifically. By
the time you read this, the legislature will probably have acted or failed to act. What should our next step be? Let us know your thoughts. Contact any member of the Bar Commission or me.
My e-mail is: president@utahbar.org.
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