Thursday, October 4, 2007
Does the participation by a non-lawyer acting on behalf of a corporation before an administrative board constitute the unauthorized practice of law? Yes, if the participation "requires the non-attorney to exercise the professional judgment of an attorney" according to a recent decision of the Tennessee Supreme Court. The non-lawyer had prepared and signed a petition challenging a decision of the Water Quality Control Board. Notably, there is a statute that permits a "duly authorized representative" to "participate" in such proceedings.
One might fairly ask if decisions such as this one are intended to protect the consuming public from incompetent service or to assure that, in such cases, the corporation has no choice but to hire counsel or default. The issue of the use--or misuse--of UPL rules to deny access to justice also is raised in a case from Delaware that was litigated by my Georgetown friend and colleague David Vladeck. David recounts the story in a chapter of Law Stories:Legal Ethics, which I have found to be an excellent text for my Advanced Legal Ethics seminar. (Mike Frisch)