Who do UPL laws benefit?
As discussed in previous posts UPL laws and regulations of legal professionals exist amid tension between the need to provide the public with access to justice and the need to protect to protect the public from snake-oil salesmen posing as legal professionals. One of my students pointed out today that the State of Wisconsin is currently attempting to define UPL for the first time. A series of posts on the State Bar of Wisconsin’s website discuss the bar’s attempt to get the Supreme Court to adopt a set of rules in this regard:
A 2005 memorandum of law prepared for the UPL Policy Committee noted that past decisions of the Wisconsin Supreme Court affirm that it has the exclusive jurisdiction to define and regulate the practice of law in Wisconsin, including the power to prevent the unauthorized practice of law by both lawyers and laypersons:
“ . . . the regulation of the practice of law is a judicial power and is vested exclusively in the Supreme Court . . . the practitioner in or out of court, licensed lawyer or layman, is subject to such regulation . . . the court has the power to make appropriate regulations concerning the practice of law in the interest of the administration of justice . . . “ State ex rel. Reynolds v. Dinger, 14 Wis.2d 193 (1961).
According to the memorandum, the Wisconsin Supreme Court has never exercised its power to establish a definition of the practice of law that would be the vehicle with which consumers could be protected. The State Bar’s petitions asked the court to establish such a definition.
The Bar casts this as totally a matter of consumer protection:
The State Bar’s initiative, called the Legal Services Consumer Protection Act, responds to a directive issued by the court in 2004 asking the State Bar to document the consumer impact of unqualified individuals practicing law and to recommend changes. Wisconsin residents seeking legal services will gain additional consumer safeguards against individuals and businesses engaging in UPL if the court approves the petition.
The original State Bar petition offered dozens of examples where Wisconsin consumers have been hurt when people without proper training or oversight attempt to practice law. In February 2009, based on feedback from other interested parties, the State Bar filed an amended version of the rule and supporting comments.
Others would argue that this is really an attempt to maintain the monopoly the bar has on providing legal service, i.e., it is a move to eliminate all competition so they can maintain high prices.
I have not yet read everything posted in the weekly series on the Bar association’s website, but what I have read does not deal at all with the access to justice issue. Apparently there is some demand in Wisconsin for such access, which demand is not being met my the present legal system – else there would not be so many examples of consumers seeking the help of “independent” paralegals.
While the set of rules proposed by the Wisconsin State Bar would indeed add safeguards for the consumer, those rules do not seem to address the access to justice issue at all. I am sure that the Winconsin Bar supports a pro bono program and ethical obligation for attorneys, but such programs simply cannot address the issue. The result appears to be that consumers are left either with legal services provided by attorneys or no legal services at all. There is no middle ground for those who need legal services, but cannot afford an attorney. One question is whether the answer to this problem is a regulatory system such as that adopted by Ontario, Canada. Perhaps the Wisconsin State Bar has another answer. If anyone reading this is aware of that answer, please let me know.
It would seem that there would be support for a regulated paralegal profession among both the political left and the political right. For the left it is a social issue – a matter of equity in that only those with significant financial resources can afford legal access. For the right it is a free-market issue – assuming proper disclosure ought not consumers be able to decide from whom they wish to obtain services, as the do in England. (Many of the attorneys with whom I have discussed these issues are in favor of protecting consumers of legal services while at the same time arguing in favor of unregulated free markets for businesses, for financial services, and the like.)
As noted in previous posts, I do not favor unregulated snake-oils salesman practicing law – as attorneys or as paralegals. However, it does seem clear we must do more to allow if not provide access to legal services than we do now. A well educated, well trained, well regulated paralegal profession may just be the answer.