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It would be a small step for deregulation but a giant step for the State Bar of Texas. Paralegals and other non-attorneys working for charitable groups would be allowed to handle some divorces, protective orders, and insurance claims under recommendations of a bar task force that studied a new definition of the practice of law. Those persons, however, would be subject to the same standards of care and ethics applicable to licensed attorneys. In another proposed change, out-of-state attorneys would be allowed to provide legal advice to their Texas employers. While relaxing the standards for practicing law would be a major change, Gregory Huffman, a member of the task force who wrote the report that was released May 24, says the new definition would “reflect existing practices.” “We were trying to tailor the statute so it conforms with what is being done now,” says Huffman, of Thompson & Knight in Dallas. In 1979, Huffman helped set up the Unauthorized Practice of Law Committee structure to police activities of nonlawyers. The changes also bring Texas closer to the European model; only those lawyers who go to court are regulated. Since lawmakers last year rewrote the definition to make it clear that the practice of law does not include books and computer software, UPL enforcement has been clouded in uncertainty. The Legislature acted after a Dallas-based UPL committee launched a high-profile investigation of Nolo Press, a California-based publisher of legal self-help materials. With the Internet offering a potential source of legal advice for millions of Texans, UPL is a critical issue for the Bar. Pressures on the Bar to improve the delivery of legal services to the poor are an added incentive to relax some of the restrictions on non-lawyers practicing law. Yet Mark Ticer, the immediate past chairman of Dallas’ UPL subcommittee — whose suits against legal self-help publishers brought some major practice issues to the forefront — says the proposals are concessions. “They’re modifying because of the changing practice of law and no harm, no foul,” Ticer says. “But the realistic implication is that they don’t have enough volunteers and man hours and resources” to enforce current UPL statutes. “Figuratively speaking, they’re going to draw the line in the sand and go after the most serious violators,” Ticer says; he notes that there seems to be a public relations aspect to the report’s proposals. “And in some respects, that’s OK. But you don’t do things based on what’s popular.” FURTHER STUDY ON MDPS The report reiterates the need for regulation of the practice of law. “If the market were the only regulator of those providing legal services, economic theory teaches that competency and ethics would be haphazard, and controlled principally on the basis of cost,” the report states. “In some instances, however, licensure requirements may need to be relaxed — where the legal service being provided can be readily determined to be of a simple nature and/or where others have skills, training and ethical standards which provide some assurance of protection to the public.” The task force, which was appointed by former Bar President Richard Pena in January 1999, also has looked at the related issue of multidisciplinary practice, where lawyers share fees with non-lawyers. It recommended further study of that issue. A public hearing on the UPL report is scheduled for Aug. 3 in Austin, Texas. Brent Clifton, chairman of the task force and a proponent of multidisciplinary practice, doesn’t think the report went far enough. Clifton, of Locke Liddell & Sapp in Dallas, thinks any person should be allowed to practice law if the client gives written consent. “If IBM wants to hire Arthur Andersen to represent it in an M&A transaction, then IBM ought to be able to do that,” says Clifton. Supreme Court Justice Craig Enoch, who serves as liaison to the Bar, says after meeting with members of the European Court of Justice two months ago, he suggested to the task force that it write a narrow definition and prohibit specific activities. But the task force decided to use a broad definition and carve out exceptions. “Enforcement might be easier if you just identify particular activities that are best left regulated,” says Enoch. “The broader you define the practice of law, the more difficult it is to prohibit the practice of it.” Huffman says the task force assumed changes to the definition would be done through legislation. How the unauthorized practice of law should be enforced will be studied in a later report. There has been criticism of the current enforcement structure, which uses committees composed of volunteer attorneys, judges and public members. A central committee can file suits against individuals believed to be engaging in the unauthorized practice of law. Critics say the volunteers are not accountable to anybody. The task force intends to set a dollar limit on divorces that could be handled by non-attorneys connected to charitable organizations. That amount will be determined after the task force receives public comment. Divorces involving any dispute on conservatorship or support of children would still be handled the attorneys. Non-attorneys could help victims of family violence obtain protective orders. They also could give legal advice related to claims made for out-of-court benefits from an individual’s insurance policy. The task force intends to later set a dollar limit on insurance claims that non-attorneys could handle. The task force also essentially adopted language passed by the 1999 Legislature that exempted legal self-help publishers from being subject to UPL laws. “It is surprising and commendable to see the Bar on this side of the issue,” says state Rep. Steve Wolens, D-Dallas, chairman of the House State Affairs Committee who carried the UPL exemption bill last session. “The Bar, as you recall, is a very closed shop,” says Wolens, a partner in Dallas’ Baron & Budd who has done battle with the Bar as a lawmaker. But “the state Bar has been very different in the last five or six years in a positive way.” The task force considered allowing charities to help persons draft wills but did not make the recommendation “because of questions raised as to the need for such a provision,” according to a footnote in the report. Clifton says he has no doubt there is a need for low-cost wills. “My argument is Wal-Mart should be able to draft wills,” he says. The charitable entities would have to maintain professional liability insurance of at least $100,000 per incident and obtain a written declaration from a client that the client understands the person providing legal advice or representation is not an attorney. The proposed statute also includes a civil remedy, based on the Deceptive Trade Practices Act, for persons engaging in prohibited activities. Staff reporter John Council contributed to this article. Janet Elliott’s e-mail address is [email protected] John Council’s e-mail address is [email protected]

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