Do You Support the Unauthorized Practice of Law Model Statute?

We’ve subscribed to the “fake it ‘til you make it” philosophy for many years. For most neophyte attorneys, it’s necessary to get a job.

When one of our law school classmates interviewed with his top-choice firm and learned that the firm was looking to hire a bankruptcy attorney, he faked it. “My focus is bankruptcy,” he told them before the start of third year, and he received an offer. (We took bankruptcy law and secured transactions together during the second semester of our third year. Neither of us knew what an automatic stay was.)

A former co-worker had a similar story. She went into her first gig, in-house counsel with a doc-prep company, with a limited understanding of the laws that governed the documents she would soon draft. She faked her way into an interview before acknowledging her relative inexperience. She persuaded her would-be boss to hire her by explaining, "I have to eat. I have to make rent. I have to pay student loans. There are two possible outcomes here: sink or swim, and I can't afford to sink."

At some point, all lawyers are faking it, but faking it is permitted when practicing law ... unless you lack a license.

In fact, the American Bar Association (ABA) is so adamant about penalizing wannabe lawyers, the group has drafted a Model Statute to uniformly define and prohibit the unauthorized practice of law. Under the Model Statute, a person engaged in the unauthorized practice of law is subject to civil penalties, criminal penalties, and the same standard of care and duty of loyalty to the client as an actual lawyer.

Critics describe the Model Statute definition of the practice of law as "overbroad," and have expressed concern that it stifles competition and perpetuates the ABA's legal industry cartel. Much like nurse practitioners and physicians assistants can offer certain types of medical assistance that may overlap with a doctor's role, Model Statute opponents believe that paralegals and researchers should be able to offer limited types of legal assistance without facing unauthorized practice of law sanctions.

If adopted, would the ABA Model Statute increase business for your practice? Do you think it would reign in document providers like LegalZoom, who have fought unauthorized practice of law claims?

Related Resources:

• The ABA's Attack on "Unauthorized" Practice of Law and Consumer Choice (FindLaw)
• Unauthorized Practice of Law: Particular Acts, Conduct, Services, or Transactions (FindLaw)
• Eleventh Circuit Lags Behind Sister Circuits in Transparency (FindLaw's Eleventh Circuit blog)