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Certain nonlawyers could perform limited legal services in Texas and — if they make mistakes — be exempt from being sued under the state’s Deceptive Trade Practices Act if a proposed statute included in a report accepted on June 14 by the State Bar of Texas board of directors is enacted. But the nonlawyers would have the same duty to perform as lawyers, says Gregory Huffman, vice chairman of the Unauthorized Practice of Law Task Force that spent more than two years working on the proposed statute. The proposal, which will be submitted to the Texas Supreme Court for review, provides a general definition of the practice of law and specifies the following: � Certain people who aren’t licensed lawyers in Texas can perform some legal functions and the circumstances under which they can do that; � The attorney general can assist the UPL Committee in actions against those who violate the law; and � Anyone who pays a person who engages in the unauthorized practice of law is entitled to sue to recover three times the amount of the compensation paid. Huffman, a partner in Dallas’ Thompson & Knight, says the task force was trying to “come up with a way of fitting the shoe to the foot.” The idea is for the statute to reflect the reality in the practice of law today, he says. According to the task force’s report, one provision would legitimize the practice of out-of-state in-house counsel acting as legal advisers to their employers in Texas. The out-of-state corporate counsel would be limited to providing legal advice to only one employer at a time and could not represent the employer in a Texas court unless licensed in the state. Another provision would authorize a nonlawyer employed by a charitable organization that provides legal services to the poor to represent a client in a court hearing on an uncontested divorce. The state’s supreme court would have to recognize the organization as a legal services provider, and the organization would have to carry professional liability insurance for at least $100,000 per incident. Huffman says the nonlawyer would have to work under the supervision of an attorney and could handle only nonsubstantive matters. “The lawyers will still be doing the heavy lifting,” he says. Legal aid providers believe the provision would help them to maximize the limited number of lawyers they have, Huffman says. A legal aid lawyer may face driving as far as 120 miles to represent a client in a 10-minute hearing, he says. “This way they can use a nonlawyer who is being supervised by the lawyer to make those long-distance trips to do a simple prove-up,” Huffman says. Manuel Newburger, a shareholder in Austin’s Barron & Newburger, says the proposed change in the statute could prevent people who have been harmed by the actions of a person who is not licensed to practice law from seeking redress under the DTPA. The DTPA provides an exemption for certain professional services. “This may bring nonlawyers under that exemption when they’re providing legal services,” Newburger says. An individual still could sue a nonlawyer for negligence, but Newburger says the DTPA provides more protection for consumers. Huffman says that the task force’s proposal does not specifically address the DTPA and that a court would have to decide its impact on that law. The proposal would alter the scope of a law passed by the Legislature in 1999 to exempt legal self-help publishers from being subject to UPL laws. If a computerized expert system failed to perform with a competence comparable to the standard of care generally applicable to Texas lawyers, the authors and publisher could be held liable. The task force also proposes that real estate software programs used in preparing transaction documents affecting a person’s homestead right be subject to UPL laws. The homestead provision is so important that any software program affecting it should have a Texas lawyer involved, Huffman says. Vidal Martinez, chairman of the State Bar board and a member of the task force, sees the proposed statutory change as a way to prevent accountants from giving legal advice — which he says happens on a regular basis — because it defines what the practice of law is. “If they’re not inside of that [definition], that means they’re outside of it,” says Martinez, a partner in Winstead Sechrest & Minick in Houston. “Right now, they’re in the unauthorized practice of law under that UPL task force report.” Huffman says the provision authorizing the attorney general to assist the UPL Committee in enforcement actions is of particular importance because companies with “deep pockets” can overwhelm the volunteer lawyers on the committee. He says the attorney general can assign one or more lawyers to assist the committee or take over an investigation. Texas Supreme Court Justice Craig Enoch, who serves as liaison to the Bar, says some proposed provisions require changes in the disciplinary rules for lawyers but that others could involve statutory changes that would have to be acted on by the Legislature. The court isn’t likely to consider the proposal until sometime in the fall, Enoch says.

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