December 1999

Executive Director's Report:
Defining the Practice of Law

by Robert D. Welden
WSBA General Counsel

For as long as there have been lawyers, there has been a question of just what "the practice of law" is. An early Washington Supreme Court opinion tried to grapple with the issue, without much success:

While we lack an authoritative definition of practicing law, we may say here that, so far as this jurisdiction is concerned, it means doing or practicing that which an attorney or counselor at law is authorized to do and practice.[1]

Why is it important to define the practice of law beyond saying it is what lawyers do? During the Board of Governors' recent series of town meetings, we heard concerns from members about the unlicensed practice of law, multidisciplinary practice, and protection of consumer rights while, at the same time, maintaining high standards for legal services.

Defining "the practice of law" is a partial response to these concerns. It lies at the heart of any effort to protect the public from untrained and unregulated persons who hold themselves out as able to offer advice and counsel in matters customarily performed by lawyers that affect individuals' legal rights, property and life. When licensed and regulated lawyers perform these functions, they are required to meet extensive educational requirements to become lawyers, required to maintain continuing legal education to stay current in the law, required to follow standards of ethical behavior with respect to their clients and others, and are subject to discipline up to and including suspension and disbarment. Nonlawyers are not required to meet any of these standards. The public has no recourse for poor, illegal or negligent performance of these functions by nonlawyers.

Along with the need to protect the public, there is a need to provide legal services for persons of limited means. The need for legal services is growing and in many cases does not appear to be met. There are many efforts to meet these needs, some sanctioned by the profession, the courts or the legislature, and others not sanctioned in any way. The growing presence of legal services by nonlawyers presents a dilemma for those who are concerned with both the protection of the public from unqualified persons offering legal services and with the need to provide legal services to persons otherwise disenfranchised from the legal system.

A definition of the practice of law may enable the enactment of consumer protection legislation; it may aid in securing funding for legal services; it may assist the criminal prosecution of unlawful practitioners; and it will eliminate uncertainty for persons working in law-related areas about the propriety of their conduct.

Any definition of the practice of law will be criticized. So long as there are persons who want to practice law without the necessity of studying and learning the law, meeting some form of entrance requirements, subscribing to a code of ethical conduct, and submitting to regulation and discipline, there will be critics of any attempts to curtail their activities.

If there are those who want to practice law without being lawyers, or who think that there are unmet legal needs which can best be met by nonlawyers, the WSBA has already provided an answer: The 1995 WSBA Nonlawyer Practice Task Force Report establishes a framework for licensing and regulating nonlawyers in the limited practice of law. The Task Force concluded that "any further consideration for creating limited licenses to practice must be triggered by outside parties requesting licensing in the future." Those who argue that nonlawyers should be allowed to practice law should be proposing a system of licensing and regulation that protects the public in a manner consistent with the regulations of lawyers.

The Board of Governors has recommended a proposed rule to define the practice of law. It is the result of many months of study and debate by a very credible committee comprised of former members of the Supreme Court, a former Superior Court judge, present and former members of the Board of Governors, the Solicitor General, and several members of the Bar-at-large. The committee solicited a broad range of comment on the definition as it was being drafted, including notices in Bar News and on the WSBA website, establishment of a list serve on the issue, and holding a public hearing at which further comment was received. The Board of Governors understands that this may not be a perfect definition of the practice of law that will please everyone. It is anticipated that it will be given further consideration over time and amended as appropriate. Notwithstanding, the Board believes that this current version is the result of careful and learned deliberation and debate, and that it is the best definition that could be crafted.

The Board has recommended that the Supreme Court adopt this proposal as General Rule 22. I encourage Bar members and the public to consider this proposal and to advise the Supreme Court of your thoughts. This is a historic opportunity for the Bar to make a difference for the respect of the profession and the protection of the public.

The full text of the rule may be found in the September 1999 issue of Bar News, p. 47.

Robert Welden is the WSBA General Counsel and served as staff liaison to the Committee to Define the Practice of Law. He is also the liaison to the Consumer Protection Committee, which will be working on Critical Strategic Focus Goal

"The WSBA will address in an appropriate way members' concerns about external influences and market pressures that impact the delivery of legal and law-related services, such as the unlicensed practice of law and multidisciplinary practice."

NOTES

1. State v. Chamberlain, 132 Wash. 520, 232 Pac. 337 (1925).

Back to table of contents >>