July 26, 2011
Daniel Fisher in Forbes has this article on the difficulties presented to laypersons in understanding the contours of state rules governing unauthorized practice. He notes:
All 50 states have rules and laws prohibiting the unauthorized practice of law, ostensibly to protect consumers. Defenders of these laws make the analogy to doctors: You wouldn’t want an unlicensed doctor to remove your appendix, would you? But the analogy isn’t precise. While it’s true an unlicensed person can’t perform surgery or prescribe medicine, the American Medical Association doesn’t have the power to fine, say, a massage therapist who advises a client to take St. John’s Wort instead of Paxil. When it comes to the law, the bar associations of many states have the power not only to identify people who are violating their rules, but haul them into court.
Fisher recounts a number of recent enforcement cases and notes a Kentucky matter:
For document-preparers like Tarpinian, determining the fuzzy line they can’t cross over is difficult. One lawyer struggled to come up with a definition and finally told me the practice of law is giving advice that two lawyers can disagree upon, with neither one committing legal malpractice. That goes to the heart of any profession, which is exercising judgment honed by specialized education and experience. The judicial branch has a particular interest in insuring that people who collect fees to represent clients in court are qualified to be there.
But if even lawyers have trouble delineating the boundaries of the legal profession outside of court, how are non-lawyers expected to figure it out?
The Tarpinian decision is linked here. (Mike Frisch)
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