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Since 1968, the New Jersey Supreme Court’s Committee on the Unauthorized Practice of Law has issued 38 opinions passing on the activities of realtors, accountants, collection agents, sellers of divorce kits and other service vendors. Remarkably, the decisions have been made case by case — without the benefit of a definition of the practice of law. After all these years, the committee’s job might get a bit easier. The American Bar Association is considering a draft Model Definition of the Practice of Law and held the first public hearing on it Friday in Seattle in conjunction with the House of Delegates session at the ABA midyear meeting. In a nutshell, the draft says, the practice of law is “the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.” The draft is the work of a task force formed by the ABA Center for Professional Responsibility. It addresses what the ABA refers to as “spotty enforcement of unauthorized practice of law statutes across the nation” and “problems related to the delivery of services by nonlawyers.” Certain acts are presumed to fall within the practice of law: giving advice on or negotiating legal rights and responsibilities; drafting legal documents or agreements affecting legal rights; and representing a person before an adjudicative body. Four exceptions and exclusions authorize some conduct that would otherwise constitute the practice of law by a nonlawyer: acting pro se; practicing law under a limited license; serving as a mediator, arbitrator, conciliator or facilitator; and providing services under the supervision of a lawyer. The draft also contains a provision that “the practice of law shall be performed only by those authorized by the highest court of this jurisdiction.” Though every state prohibits the unauthorized practice of law, most, like New Jersey, fail to define the practice. An ABA review of state laws identified only 15 states that attempt a definition through statute or court rule. They are: Alabama, Alaska, Arizona, Georgia, Kentucky, Louisiana, Maryland, Minnesota, Missouri, New Mexico, North Carolina, Rhode Island, Texas, Washington, Wyoming and the District of Columbia. These attempts vary widely, from Georgia’s one-paragraph provision, to Arizona’s 2,500-word-plus rule, which specifies 24 exceptions. CRITICS COMPLAIN OF OVERBREADTH In trying to define what services require a licensed attorney, the task force took into account its avowed goals of protecting consumers and ensuring access to legal services. The attempt has provoked heated debate. Most of the criticism is that the draft has erred too far on the side of protecting the public, with an overbroad definition that would make it harder for people who cannot afford lawyers to obtain help with law-related problems. Those critics include the Federal Trade Commission; the Justice Department; the Association of Professional Responsibility Lawyers, legal services, paralegal and consumer groups; and the ABA’s Antitrust Law Section and Standing Committee on the Delivery of Legal Services. Even commentators generally supportive of the draft urge expansion of the definition to provide clearer guidance in particular circumstances and the addition of further exceptions and exclusions that acknowledge law-related functions performed by nonlawyers. For example, the ABA standing committee notes that the four listed exceptions “barely scrape the surface of the considerable overlap between legal and nonlegal services.” Perhaps the most fundamental critique comes from the Association for Professional Responsibility Lawyers, which is urging the ABA to scrap the effort to formulate a definition. “It is neither possible nor desirable to adopt a single definition of the practice of law that will work even reasonably well in the many and varied contexts in which some definition might be useful,” reads the APRL comment. The organization raises the thorny question of whether a nonpracticing lawyer who is selling life insurance full time or working as a claims adjuster, financial adviser, trust officer or lobbyist is practicing law when these same jobs can be and are done by nonlawyers. ‘QUASI AREAS’ At least one member of the New Jersey court’s UPL committee, Kenneth Javerbaum, sees a need for the definition because the boundary between what is and is not the practice of law “certainly is not a bright line.” Javerbaum, a partner with Springfield, N.J.’s Javerbaum Wurgaft Hicks & Zarin, is looking for help with what he refers to as “quasi areas.” For example, what about someone who negotiates a bill with a creditor or credit agency on behalf of a layman? Or translators in pro se divorce cases who help with filling in forms but might cross the line when they give advice on whether to file based on no-fault or adultery? Ethics professor John Leubsdorf, of Rutgers School of Law-Newark, worries about the breadth of the ABA definition. “Even if it were adopted, no one would give it its literal meaning,” he says. “Taken at face value, it could include in the practice of law all sorts of things people now do without being lawyers and should be able to do.” For instance, the definition creates a presumption that giving legal advice is the practice of law even when done for free. The definition as worded could sweep up those who merely discuss a law-related problem with a spouse, neighbor or friend. What about the architect who advises clients on complying with the building code? Or the seller of software to write contracts and do taxes? The draft also does not state whether the presumption of practicing law is rebuttable, nor whether the four listed exceptions are exclusive, notes Leubsdorf. While agreeing that the definition is broad, ethics professor Michael Ambrosio views it more favorably. “It is not a bad idea to attempt a definition that gives some guidance,” even if that definition is imperfect, says Ambrosio, who teaches at Seton Hall University School of Law in Newark. “Essentially, it’s always a judgment call as to a definition like this.” Ambrosio sees the presumptions as rebuttable and is confident the definition would be interpreted to overcome flaws in wording. “I don’t think it would be construed to prevent someone from gratuitously offering advice about legal rights and responsibilities so long as there is no attempt to get paid for it,” he says. “You don’t want to prevent someone from getting the advice of a friend,” Ambrosio says, noting that a lot of work considered law-related requires the supplying of data rather than the exercise of judgment. The central concern, he adds, is to protect people from being misled about the qualification of the person giving legal advice or offering services, and it might help if the definition referred to that. Since it is not up for a vote, the model definition was not a topic of discussion among the New Jersey lawyers attending the ABA session in Seattle last week, according to state-delegation head Thomas Curtin, a partner with Graham, Curtin & Sheridan in Morristown. Delegate Michael Prigoff finds the definition useful but broad and ambiguous. What about business advisers, investment bankers and tax professionals who give advice about legal issues that are not traditionally thought of as the practice of law, wonders Prigoff, a partner with Englewood, N.J.’s Lebson, Prigoff & Baker. Another delegate, Morristown’s Stephen Maskaleris, is gearing up for a battle over adopting the definition, based on Federal Trade Commission and Department of Justice opposition. He accuses the agencies of wanting “to encapsulate the practice of law,” contrary to the interests of lawyers, especially those in smaller firms. Art Garwin, task force staff counsel, says he hopes to produce a final draft by the end of March. If the effort survives the criticism, the draft would be presented to the ABA House of Delegates for approval in August.

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