Saturday, October 21, 2006

Buhai on malpractice actions against unlicensed "lawyers"

Sande Buhai (Loyola Los Angeles) has posted this article on SSRN, also upcoming in Utah Law Review.  It explores the malpractice tort issues relating to defendants who are committing the Buhai2 unauthorized practice of law.  Its title is "Act Like A Lawyer, Be Judged Like A Lawyer: The Standard of Care for the Unlicensed Practice of Law," and its abstract is after the jump below.  To me, some of the more interesting follow-up issues involve causation:  did the lack of license actually cause the damages to the client, or some substandard conduct?  If not substandard conduct, then why do we care for torts purposes that the defendant has no license?  If there is substandard conduct, then why do we care that the defendant has no license?  Of course the article focuses on the standard by which to judge "substandard conduct" and takes the infinitely reasonable position that the standard set is that of the lawyer which defendant pretended to be.  I am just adding that the other elements in such a case, particularly damages and the causation that connects them to that breach of duty, raise nice issues too.  [Posted by Alan Childress]

Professor Buhai's ABSTRACT

    In recent years, regulation of the unauthorized or unlicensed practice of law has become a profoundly controversial issue. Given the extensive attention that has been given to regulation of the practice of law ex ante, it is remarkable how little attention has been given to the problem of protecting consumers from the provision of substandard legal services by non-lawyers ex post –- that is, through the tort system after injury has occurred.

     This article explores the standard of care applicable to the unlicensed practice of law –- that is, the standard of care applicable to the exercise of legal judgment, giving of legal advice, counseling of others as to rights and obligations under the law, preparation of legal instruments, and the like by non-lawyer professionals when the adequacy of such services is challenged ex post in tort. Notwithstanding the general prohibition against the practice of law by non-lawyers, non-lawyers do commonly engage in such activities, sometimes with explicit permission, sometimes with tacit permission, sometimes with no permission at all. To what standard should such non-lawyers be held when they do and their activities injure the consumers they are servicing?

     Without taking any position as to whether such activities should be lawful – that is, without becoming embroiled in the ex ante regulatory debate – the Article explores whether there are reasons to relax the applicable tort standards in each such context. It is possible that without some flexibility in the ex ante regulation of legal practice, many lower- and middle-income Americans would be deprived of effective access to important legal services. Regardless of whether states should authorize the conduct of such activities by non-lawyers, however, there is no good reason to deprive the lower- and middle-income Americans thus served of recourse in tort when the resulting services are substandard. The Article therefore concludes, consistent with the bulk of existing case law, that there is nothing in the ex ante authorization of the performance of such tasks by non-lawyers that would justify the reduced ex post consumer protection implied by lower standards of care. Courts should hold those who engage in the compensated practice of law, whether authorized or unauthorized, whether licensed or unlicensed, to the standard of care of a practicing attorney.

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