The ABA's Attack on "Unauthorized" Practice of Law and Consumer Choice
May 1, 2003George W.C. McCarter
Judge Posner is not alone in observing that the legal profession is “a cartel of providers of services relating to society’s laws” and that restricting entry is the focus of that cartel. Modern economists call it “rent seeking”, but throughout recorded history, skilled crafts and professions have tried to raise their members’ incomes by using the power of the tate to limit entry. The organized bar’s preferred method is Unauthorized Practice of Law (UPL) statutes, which geerally criminalize the provision of legal services by non-lawyers. or example, in my state of New Jersey, it is a “disorderly persons offense” knowingly to engage in the unauthorized practice of law, and a “crime in the fourth degree” to ommit UPL if one (a) creates a false impression that one is a lawyer; (b) derives a benefit from UPL, or (c) causes an injury by UPL. See N.J.S A. 2C:21-22. But state rules vary widely, and Arizona has no rule at all. With accountants at one end and paralegals at the other poaching on traditional legal ground, sentiment has grown within the bar to adopt a consistent and, implicitly, broad definition of the practice of law. Thus when the American Bar Association announced its intention to draft a model Unauthorized Practice of Law statute, few observers, inside or outside the profession, expected this project to open the practice of law to lay competition and wider consumer choice.