The Rule of Law Applies

Hawaii State Bar Association Proposes Addition to Court Rule Expanding On the Definition of UPL Which Could Effectively Outlaw Non-attorney Legal Document Preparation

The profession of law has traditionally been the private domain of lawyers, judges and law professors. The difficult to understand, complex legal writings authored by lawyers were sarcastically termed “legalese” in 1914, and carried the implication that the formality and complexity of the writings was a deliberate strategy by lawyers to maintain an elitist control over the processes of law and justify the high cost of attorney fees.[1]

In today’s culture, this concept is no longer viable or welcomed. It has been widely accepted that lawyers have placed a premium on their profession making legal services unaffordable. Improved access to the legal system is a necessity and consumers have the right to make informed decisions concerning legal service providers, particularly when the legal matters are of a simple nature and do not require specialized assistance.

It appears the courts agree. Almost every court has a self-help clinic or agency referral program, most of which are established within the courthouse and staffed by court employees. The clinic atmosphere allows for several people to be seen by a staff attorney or paralegal each day. Legal forms and advice are available and usually there is public access to computers and the resources of the law library. The courts understand that an educated litigant is more likely to complete and process documents properly rather than a litigant who has little or no instruction and whose documents might be returned unprocessed by the court on a regular basis due to mistake and oversight. The California Judicial Council and the courts have worked toward simplifying forms for pro per litigants’ ease of use. These efforts should eventually create a more streamlined and thus, workable system.

Several states have either enacted legislation or are in the process of reviewing proposed legislation providing for non-attorney legal document preparers. The enactment of this type of legislation with inclusion of viable consumer protections, restrictions on the services to be performed, and mandatory continuing legal education, including ethics training as requirements, will greatly serve consumers and the courts.

Recently the Hawaii State Bar Association (HSBA) drafted a proposed addition to a Supreme Court Rule defining the “practice of law,” in an attempt to change and broaden the definition. The HSBA wanted the practice of law to be defined as "the giving of legal advice or legal assistance to another person on his or her legal rights and obligations; performing legal research; and selecting, drafting or completing documents that affect the legal rights of another person."[2] Attorneys in support of the change in legislation advised that the change was necessary in order to protect people from bad legal advice. Others have argued that it is an attempt by attorneys to monopolize legal services and remove competition, all under the guise of “consumer protection.”

Ironically, the HSBA appears to contradict itself on this very issue. On one hand, the Bar is proposing an addition to a Court rule which would require self-represented consumers to retain an attorney for something as routine as typing up simple court forms. However, as recently as December 20, 2007, the HSBA adopted a resolution supporting “The Community Wide Action Plan: Ten Action Steps to Increase Access to Justice in Hawai’i By 2010,” a joint report funded and compiled by the Hawaii Justice Foundation, Hawaii State Bar Association and the Judiciary of the State of Hawaii.[3]

The “Ten Action Steps” include such things as enabling individuals to represent themselves effectively, maximizing the use of available resources, and overcoming barriers to access to justice – all goals which are further realized by the utilization of qualified non-attorney legal document preparers.

On January 25, 2008, the Federal Trade Commission and Department of Justice directed joint correspondence commenting on HSBA’s proposed rule addition to the Judiciary Public Affairs Office in Honolulu.[4] The DOJ and the FTC expressed concern that the focus should be on consumer welfare and that the proposal limited the resources that consumers could rely upon for legal services. “The choice of whether to use a lawyer or non-lawyer service provider should rest with the consumer unless it is clear that specialized legal skills or training are required. Lawyer/non-lawyer competition benefits consumers, particularly when there is no evidence that consumers have been harmed by non-lawyer service providers. We urge the Court to revise the proposed rule to preserve competition in service areas for which the knowledge and skill of a lawyer is not required.” The joint letter opined that “the definition of the practice of law proposed by the HSBA unnecessarily limits competition between lawyers and non-lawyers and likely will cause more harm to consumers than it will prevent. Accordingly, the proposed definition is not in the public interest.”

The letter voiced mutual concern about efforts across the country to prevent non-lawyers from competing with lawyers through the adoption of excessively broad unauthorized practice of law restrictions: “Some of these proposals appear to be little more than overt attempts by lawyers to eliminate competition from alternative, lower-cost non-lawyer service providers; others, while appearing to be good faith efforts to protect consumers, have not been tailored narrowly enough to avoid unnecessary harm to competition.”

The proposal authored by the HSBA suffered criticism as it was widely believed that the suggested definition was indeed too broad and potentially damaging to other professions, including those related to real estate, financial, and insurance services, as well as legal document preparation. The Hawaii Bar is now rewording its proposal and has asked the Supreme Court for an extension of time in which to provide an amended proposed addition to the rule.

The HSBA might wish to study the legislative models of other states utilizing consumer protection measures and regulations for non-attorney legal document preparers before re-writing its proposed addition to the exisiting rule. It should recall the intent of its December 2007 Ten Step Plan which is, in part to provide consumers with access to low cost legal resources. Finally, the HSBA should reflect upon and more importantly, honor this year’s celebration of the 50th Anniversary of National Law Day, appropriately themed, The Rule of Law, Foundation for Communities Of Opportunity and Equity.

“The rule of law refers to a system in which the government is accountable under the law. This system is based on fair, clear, publicized, and stable laws that protect fundamental rights. These laws are enacted, administered, and enforced by a process that is accessible, fair and efficient. The laws are upheld by diverse, competent, independent, and ethical law enforcement officials, advocates and judges. This foundation is essential to foster sustainable communities of opportunity and equity.”
----- American Bar Association President William Neukom[5]

"To maintain the strength of our state and our nation, we must ensure that we have a court system with integrity – one that is fair and objective, that hears and resolves disputes in a timely fashion, that is open and truly accessible to all, and finally that is worthy of the respect and confidence of the public we strive to serve."

------ Hon. Ronald M. George, Chief Justice, California Supreme Court

[1] http://en.wikipedia.org/wiki/Legalese

[2] http://www.hsba.org/upl.aspx

[3] http://www.hsba.org/accesstojusticereso.aspx

[4] http://www.ftc.gov/os/2008/01/V080004letter.pdf

[5] Law Day Planning Guide, Law Day 2008, American Bar Association, Standing Committee on Public Education, President’s Message