January 2001

Defining "The Practice of Law" — Untying the Gordian Knot

by Robert D. Welden
WSBA General Counsel

As the story goes, King Gordius tied his cart with a knot so complex that the people came to believe that whoever could figure out how to untie the knot would become the ruler of all Asia. Many tried and failed. In his quest to become conqueror, Alexander tried, and like the others, also failed. Finally, he grew impatient, drew his sword in the finest Indiana Jones-fashion, and cut the Gordian Knot. After his subsequent conquest of Asia, many looked back at that moment as the key to his triumph.

Determining what constitutes "the practice of law" may be the key to untying the Gordian Knot of the unauthorized practice of law (UPL). To this end, the Board of Governors has submitted to the Washington Supreme Court a proposed court rule (General Rule 22) defining the practice of law. In order to implement that rule, the board also submitted a proposed rule (General Rule 23) establishing a practice of law board which would address issues regarding both unauthorized practice of law and regulation of authorized practice by nonlawyers. (The text of the proposed rules can be found at www.wsba.org/proposed.)

This article discusses the background of these proposals, the current consideration of them, and future challenges facing the bar. The premise of these efforts is this: If we can define the practice of law, then we can equally define the unauthorized practice, and can provide protection for the consumer of legal services, assurance of competent legal assistance, and a system that provides recourse when incompetent or dishonest service is provided.

Today there is almost no enforcement of restrictions on unauthorized practice of law. The reasons for this are both historical and legal.

According to a study by the American Bar Association, issues of unauthorized practice of law go back to colonial times before there was an organized bar. The ABA study describes a continuing tension between hostility toward lawyers and efforts to control unauthorized practice of law. The ABA study notes that these UPL activities were generally perceived to be driven by protection of lawyers' private interests rather than public demand for consumer protection.

Between the 1870s and the 1920s, many states enacted UPL legislation. Washington passed a law in 1921 that only persons admitted to practice in Washington could practice law, and made violation of that statute a gross misdemeanor (Rem. Rev. Stat. ß139-4; 139-22. Cf., RCW. 2.48.180). In 1925, a case came before the Washington Supreme Court in which it was charged that one Charles Chamberlain "willfully and unlawfully represented himself to be, and practiced as an attorney and counsellor at law, and did work of a legal nature for compensation." One of the issues raised by Chamberlain was that the statute did not define the practice of law. In upholding the statute, the Supreme Court said:

"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."

Thus, the Supreme Court held that the practice of law is what lawyers do. As early as 1930, the WSBA established an Unauthorized Practice of Law Committee that investigated UPL complaints and brought civil enforcement actions. This system continued until about 1980. During that period, the UPL Committee presented reports annually in which they decried the difficulty of their task because of the lack of documented cases of harm to the public of what was widely acknowledged within the bar to be a problem of unauthorized practice of law.

In the 1970s, the U. S. Department of Justice filed Sherman Act violation actions against the Virginia State Bar Association and others, and the Federal Trade Commission launched a nationwide investigation into alleged unlawful restraint of trade activities of bar associations. As a result, in 1979 the WSBA Board of Governors directed the UPL Committee to limit its activities to studying what its role should be and making reports to the board.

Several studies on UPL and related issues were reported to the board between 1979 and 1995. Also, in 1997 the WSBA proposed legislation to make UPL a per se violation of the Consumer Protection Act. Each of those efforts failed at least in part because of the inability to define what it is that is being regulated, i.e., the practice of law.

The result is that today the WSBA has no role in attempting to regulate the unauthorized practice of law. RCW 2.48.180 makes UPL a crime, and also empowers prosecuting attorneys, along with the attorney general, to seek injunctive relief against unauthorized practitioners. The reality is that very few public prosecutions are brought because of the limited resources of prosecutors and because of the difficulty of proving the offense except in extreme cases.

The Washington Supreme Court has made efforts at defining the practice of law, but only on a case-by-case, piecemeal basis. In 1998, Cashmere lawyer Steve Crossland, who was formerly on the Board of Governors and who had participated in three of the previous UPL-related reports to the board, proposed the establishment of a "blue ribbon" Committee to Define the Practice of Law to draft a definition of the practice of law.

The committee presented its final report and proposed definition in July 1999. The proposed definition was submitted by the Board of Governors to the Supreme Court for adoption as General Rule 22. The Supreme Court published the proposed rule for comment in the January 11, 2000 Advance Sheets (139 Wn.2d No. 6). Many comments were received and forwarded to the Board of Governors. The board referred them to the Committee to Define the Practice of Law for review and recommendation. The committee was expanded to add representatives from the Superior Court Judges' Association, the Washington Association of County Clerks, the Access to Justice Institute of the Seattle University School of Law, lawyers and nonlawyers from the Access to Justice Board, and former citizen members of the Disciplinary Board.

The board directed the committee to make recommendations regarding changes in light of the comments to the Supreme Court, and regarding implementation of the definition, if adopted.

Once the practice of law is defined, the issue becomes who is and who is not authorized to practice law. The committee recognized that these are major, controversial issues falling under the rubrics of "unauthorized practice of law" and "access to justice." Succinctly stated, should anyone other than lawyers be authorized to practice law?

In originally drafting the proposed definition, the Committee to Define the Practice of Law debated this issue and concluded that there are already many areas in which nonlawyers are authorized to practice (see proposed GR 22 (b)). In discussing the implementation of this definition, the expanded committee did not undertake to go further in trying to resolve this issue. The committee agreed on a statement of principle drafted by lawyer member Jim Bamberger that guided their work:

All members of society should be able to afford/retain essential legal assistance from individuals who have the requisite skills and competencies and operate subject to an oversight/regulatory scheme that ensures that those whose important rights are at stake can reasonably rely on the quality, skill and ability to perform necessary appropriate tasks.

The committee drafted proposed GR 23 to establish a Practice of Law Board which would serve (1) to consider issues relating to the unlicensed or unauthorized practice of law, issue advisory opinions, and make appropriate referrals to prosecution authorities; and (2) to regulate the practice of law by recommending to the Washington Supreme Court any future limited licensing of nonlawyers to practice law.

No conclusion was reached on whether there should be any future limited licensing of nonlawyers to practice law, but the Practice of Law Board establishes a mechanism for considering the issue. The proposed rule sets out criteria to be used in considering whether to recommend to the Supreme Court that nonlawyers be authorized any limited practice. This rule would not authorize anyone to practice law. Nor would it empower the Practice of Law Board to authorize anyone to practice law. Rather, it establishes a mechanism by which complaints of unauthorized practice of law may be investigated and resolved, or reported to an appropriate enforcement agency. It also establishes a mechanism and criteria for consideration of any recommendation to the Supreme Court that it adopt court rules pursuant to GR 9 to authorize the limited licensing of nonlawyers to engage in the regulated practice of law.

The Knot Untied: Whither the Future of the Profession of Law?

Just as severing the Gordian Knot did not resolve Alexander's future battles, defining the practice of law will not resolve the issues of the future of the profession. The challenges for the bar are many. On all sides, nonlawyers are seeking to occupy turf lawyers once thought was exclusively theirs. This ranges from the independent paralegal advising individuals on divorce and bankruptcy, to CPAs and others seeking adoption of rules to permit multidisciplinary practice, to lawyers from one state seeking authority to engage in multijurisdictional practice in other states, to the proliferation of legal information and services on the Internet.

The WSBA Long-Range Strategic Plan, adopted by the Board of Governors, includes Goal No. 5: The WSBA will address the unauthorized practice of law, multi-disciplinary practices, and other external influences and market pressures that impact the delivery of legal and law-related services. President Jan Eric Peterson has established a Futures of the Profession Study Group, chaired by Seattle lawyer Tom Fain, to answer the following questions:

1. Do we change the RPCs to allow multi-disciplinary practice? Why or why not?

2. Do we change the RPCs and/or APRs to deal with multijurisdictional practice? Why or why not?

3. How can we anticipate and deal with the effect of the Internet on the practice of law?

The study group is concentrating on the multidisciplinary and multijurisdictional practice issues, and expects to report to the Board of Governors at the July 2001 meeting. Issues relating to the Internet will be considered as time permits within the structure of the study group, but may take further consideration.

Public distrust of lawyers is probably no less today than it has been in the past. As a 1995 American Bar Association Nonlawyer Practice Report states: "The debate over delivery of law-related services and their cost is a public concern that will be debated by the public, not just by the legal profession." Lawyers have never been successful when their only interest was in "turf protection." But even when motivated by a desire to protect the public, lawyers' motives are viewed with suspicion. Consumer protection cannot be just a catchphrase; it must be a sincere, motivating and manifested principle to gain the trust and support of the public.

There are worlds of apathy, ignorance and indifference waiting to be conquered. Defining the practice of law is a step, but only a step, toward this eventual conquest aimed to protect the public, assure competent legal services, and develop a system to provide recourse to the consumer when things go wrong.