Utah Bar Journal

Although all of these "answers" can be found among the attempts to address the issue by various state legislatures, courts, bar associations and committees, none of them passes muster as a sound definition of an important concept that has major public policy ramifications. Without exception, these definitions are circular because they define a concept in terms of the very term "law" or its derivatives such as "lawyer" and "legal."

But, why do we even care? Shouldn't we just use the Justice Potter Stewart test: It's difficult to define, but we know it when we see it.2 Actually, no; this approach may have been sufficient for a Supreme Court Justice writing a short concurrence about pornography 40 years ago, but we need something more concrete in today's dynamic environment where (a) something called "the law" pervades almost every aspect of modern human activity, (b) there is a need to recognize that there are areas of societal activity involving the law that require assistance but don't require the full training and background that a lawyer has, and (c) there is a need to protect the public from the charlatans and incompetents who roam the planet to "help" people with their legal problems.

As we were taught in law school, we might first turn to legislative statutes, appellate court case and the rules promulgated by the Utah Supreme Court. In so doing, we would come up nearly empty, although there have been a couple of Utah Supreme Court, cases that nibbled around the edges of this subject. As we discuss below, the 2003 Utah Legislature made a clumsy attempt to bring its forces to bear on the issue, but the 2004 Legislature repealed the attempt, leaving it - where it constitutionally belonged - in the hands of the Utah Supreme Court. Further, guidance from courts and legislatures in other jurisdictions produces only a collection of circular definitions, nebulous concepts and "definitions by example" - often, this latter category is characterized by the inadequate legalese crutch of "it includes, but is not limited to, the following."

In June of this year, the Utah Supreme Court adopted a new Chapter 13a of the Utah Code of Judicial Administration, with a single rule, Rule 1.0, "Authorization to Practice Law."3 This action largely resolves the long-standing conundrum surrounding the companion questions of "what is the practice of law?" and "what is the unauthorized practice of law?"

And that's the point of this article: What is the story behind this action by the Court, and what does it mean for the legal community and society in general?

Background
In April 2003, the Utah Supreme Court requested its Advisory Committee on the Utah Rules of Professional Conduct (the "Committee") to develop a definition of the "practice of law."

It is likely that this request was in significant part a response to the attempt by the 2003 Utah Legislature to adopt its own definition of the practice of law. It was widely conjectured that a majority of the 2003 Legislature had concluded that the legal community was too parochial and over-protective of its professional turf in the pursuit and prosecution, through the Utah State Bar, of non-lawyers who were engaged in various legal and law-related activities.

In a reaction to what it may have perceived to be a societal problem, the Legislature took a meat-axe to the issue and, roughly speaking, attempted to define the practice of law to be strictly limited to the representation of a person in court: "The term 'practice law' means appearing as an advocate in any criminal proceeding or before any court of record in this state in a representative capacity on behalf of another person."4

This, of course, was pure rubbish. It would have had the effect of decreeing that the legal services rendered by all manner of lawyers would not be the practice of law (e.g., transactional lawyers; most tax and estate planning lawyers; "compliance lawyers," such as securities and environmental lawyers; and even administrative agency litigators). It would have, perforce, allowed the untrained, unregulated village idiot to perform these services for the unsuspecting citizen with no fear of prosecution or other legal or regulatory restraint.

As a sign that the Legislature recognized that its definition was pure eyewash, it made the statute effective one year hence, on May 3, 2004.5 One can assume this was intended then as "message legislation" to the Utah Supreme Court, urging (threatening?) the Court to adopt a definition of the practice of law that would recognize that certain services related to legal fields might reasonably be provided by non-lawyers.

It is not clear if any legislator who supported and voted for House Bill 349 paid any attention to the fact that it was likely in violation of the Utah Constitution: "The Supreme Court by rule shall govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law."6 It does not say, for example, "The Supreme Court shall share the governance of the practice of law with the Utah Legislature."

In any event, after the 2003 Legislature retired, the Supreme Court sought to adopt a definitive description of what should constitute the "practice of law" and the corollary of what would be the unauthorized practice of law.

The Court had earlier addressed the issue in a couple of decisions, but seemed to recognize that its discussion of the subject was incomplete or, in some way, not universally applicable. In Utah State Bar v. Summerhayes & Hayden, the Court cobbled together a reasonable description (but not a formal definition) of the practice of law:

The practice of law, although difficult to define precisely, is generally acknowledged to involve the rendering of services that require the knowledge and application of legal principles to serve the interests of another with his consent. It not only consists of performing services in the courts of justice throughout the various stages of a matter, but in a larger sense involves counseling, advising, and assisting others in connection with their legal rights, duties, and liabilities. It also includes the preparation of contracts and other legal instruments by which legal rights and duties are fixed.7

Although this gave a good intuitive notion of what is typically involved in practicing law, the description is essentially circular - defining the practice of law as requiring "knowledge and application of legal principles." To overcome this logical shortcoming, the Court attempted to flesh out the idea with a series of examples,8 but it did not carefully circumscribe either the extent of the "practice of law" or the "unauthorized practice of law."

The Court later muddied the waters of this issue by declaring in Board of Commissioners of the Utah State Bar v. Petersen that, "[t]he regulatory authority granted the Utah Supreme Court in article VIII, section 4 clearly refers to the authorized practice of law, not to the unauthorized practice of law."9 This was almost surely a mistake, and the Court appears to have corrected this misstep by quietly amending subsection (a) to Rule 6 of the Utah Rules of Lawyer Discipline and Disability in December 2002, so that the rule now refers to "persons practicing law," instead of "lawyers admitted to practice."

Persons practicing law. The persons subject to the disciplinary jurisdiction of the Supreme Court and the [Office of Professional Conduct] include any lawyer admitted to practice law in this state, any lawyer admitted but currently not properly licensed to practice in this state, any formerly admitted lawyer with respect to acts committed while admitted to practice in this state or with respect to acts subsequent thereto which amount to the practice of law or constitute a violation of any rule promulgated, adopted, or approved by the Supreme Court or any other disciplinary authority where the attorney was licensed to practice or was practicing law at the time of the alleged violation, any lawyer specially admitted by a court of this state for a particular proceeding, and any other person not admitted in this state who practices law or who renders or offers to render any legal services in this state.10

This is consistent with Article VIII, ¤ 4, of the Utah Constitution, which gives the Supreme Court jurisdiction over all practice of law, no matter who is engaged in it. Thus, the Court's Rule 6(a) inherently recognizes there are non-lawyers who may be "practicing law."

In this context, the Court asked its Advisory Committee to provide a structure on which to base the distinction between authorized and unauthorized practice of law. The former may contain areas in which non-lawyers would be authorized; the latter may contain "lawyers" who are nevertheless not authorized to practice. Then, by definition, any individual who is not so authorized is engaged in the unauthorized practice of law.

The Committee formed an ad hoc subcommittee to research the issue and develop a proposal to respond to the Court's request. Over a period of about a year, a definition was developed, submitted to the Court and published for comment on the Court's website. Approximately 35-40 comments were received and carefully considered, and a final proposal was submitted to the Court in August 2004. The Court, sua sponte, made some modifications and formally adopted the current rule in June 2005.11

Fundamental Development12
A universal shortcoming of previous attempts to define the practice of law has been the failure to recognize that one of the two primary ingredients in the phrase is "the law," and that it is essential to define that term carefully as part of the exercise. Another common shortcoming of other attempts to define the practice of law is that they start with the notion that the definition should ultimately end up matching what licensed lawyers are permitted to do. This is definitional tail-chasing that is destined to be circular.

These problems can be avoided by: (1) defining what areas of human knowledge constitute "the law;" (2) defining what it means to "practice" law, without reference to who is doing it or whether the activity has been given a governmental blessing; and (3) specifying who may and may not legally engage in the practice of law.

The last element is perhaps the most difficult to conceptualize. The lawyer's instinct is to invoke the false syllogism: "Licensed lawyers are authorized to practice law; you are not a licensed lawyer; ergo, you are not authorized to practice law." This is the heart of many definitional attempts. First; this does not follow logically. More importantly, however, the pervasiveness of legal elements in almost every nook and cranny of American society renders this approach hopelessly impractical. A simple example: Certified public accountants routinely deal with myriad statutes, regulations and legal principles in the preparation of tax returns for their clients. Does this exhibit the characteristics of "practicing law" under any general interpretation of that term? Almost surely yes. But such activities in today's complex, tax-driven world have not been - and should not be - regarded as the unauthorized practice of law.

Thus, the idea that a careful definition of the "practice of law" must coincide with what lawyers are authorized to do must be abandoned. Rather, an axiomatic approach should start with a careful definition of what body of human knowledge constitutes "the law." The Committee could find no court, bar commission, or legislature that took this fundamental step in their various attempts to solve the practice-of-law problem.

Once there is agreement on a body of human knowledge and information that constitutes "the law," defining the "practice of law" involves the characterization of the actions and situations that are to be considered the "practice," without reference to the qualifications of those who might be engaged in that practice. That is, one of the most important concepts in approaching the definition in this way is that the definition of the "practice of law" must be independent of the training, background, titles or qualifications of a person who might be engaged in the practice. This avoids the unworkable, circular approach of defining the practice of law as "what lawyers do."

An ancillary step is to specify those persons who will be denominated lawyers and will be eligible to engage in all forms of the practice of law. But, a comprehensive set of qualifications that a person must demonstrate to become a Utah lawyer has long been in place.13 Thus, the Committee took the definition of lawyer as a given - namely, a person who has successfully passed through the process administered by the Utah State Bar to be licensed to practice in Utah.

Finally, when a solid definition of "the law" and a designation of the actions and situations that make up "practice" of "the law" are established, the last element is to decide where lawyers and non-lawyers fit into the picture and how the dividing line between authorized practice of law and unauthorized practice should be drawn. In broad terms, the first part of the exercise - to give a formal definition of the "practice of law" - is a jurisprudential task, while the process of determining what areas of the law non-lawyers may legally be involved in is largely a public policy matter.

This last step is perhaps the most daunting part of the problem, but structuring the overall approach this way allows the "practice of law" to be a largely fixed concept, while the specification of various subsets of practice that may be open to non-lawyers under some circumstances may change from time to time to reflect society's ever-changing view of this landscape, without the necessity of tinkering with the basic definition of the practice of law.

Definition of the "Practice of Law"
Having concluded that a sound definition of the practice of law should not rely on the use of undefined terms, the Committee first undertook to define the breadth of "the law." To that end, because "the law" generally delineates what is and is not acceptable by society as set forth by legislatures and other governmental law-making bodies and then interpreted by a variety of tribunals, the Committee proposed and the Court adopted the following definition:

The "law" is the collective body of declarations by governmental authorities that establish a personÕs rights, duties, constraints and freedoms and consists primarily of:

(A) constitutional provisions, treaties, statutes, ordinances, rules, regulations and similarly enacted declarations; and

(B) decisions, orders and deliberations of adjudicative, legislative and executive bodies of government that have authority to interpret, prescribe and determine a personÕs rights, duties, constraints and freedoms.14

This captures (A) the governing frameworks that are characterized by constitutions, legal codes, ordinances, regulations and the like-roughly speaking, affirmative statements and actions by government bodies of what behavior is and is not permitted in society, and (B) the common law or interpretational law that issues from judicial and quasi-judicial institutions Ð primarily the courts and administrative agencies.15

No matter how restrictive or expansive society decides to define the universe of persons who are permitted to "practice law," it is essential first to decide what activities constitute the practice - not the persons who might do it.

The general idea - even among lay persons - is that the practice of law involves two basic elements: (a) application of the law to particular facts and circumstances, and (b) the representation of the interests of another person. Representation here is not limited to advocacy representation. It is meant in the broader sense of rendering advice about rights and obligations to a person, including service in an advocacy role when appropriate.

The "application of the law" element, by itself, would not constitute the practice of law under any normal jurisprudential scheme. Legal scholars, for example, engage in this activity as a profession, but they are not considered practicing lawyers as long as they are not representing another person. Similarly, pro se representation may involve application of legal principles to one's own situation, but would not involve representation of another.

On the other hand, the representation of a person as an agent does not necessarily involve the application of legal principles and does not, in and of itself, constitute the practice of law. There are many examples: Some activities of real estate agents and escrow agents; voting proxies; a dueler's "second." Even so, some of these border on the application of legal principles, and that is what makes this area difficult to analyze.

In connection with the definition of "the law" above, the Committee defined the "practice of law" as:

The "practice of law" is the representation of the interests of another person by informing, counseling, advising, assisting, advocating for [or drafting documents for] that person through application of the law and associated legal principles to that person's facts and circumstances.16

The Court added the bracketed phrase "and drafting documents for" to the Committee's recommendation. This may have been an unnecessary clarification, as the term "assisting" would include the preparation of documents.

This sets the stage for tackling the difficult cultural/societal issue of what is the unauthorized practice of law.

Unauthorized Practice of Law.
The foundational principle proposed by the Committee and adopted by the Court is: Except for certain carefully specified persons and activities that recognize today's societal demands that a number of areas of the practice of law may be undertaken by persons who are not lawyers, only "active, licensed members of the Utah State Bar in good standing may engage in the practice of law."17

This leaves a two-dimensional exercise: (a) a designation of practice areas in which it is not necessary to be a Utah lawyer; and (b) a description or specification of qualifications that enable the non-lawyer to practice in such a field.

With some modification, the Court adopted the Committee's recommended "carve-outs" - those activities that may be the practice of law, but which will not be considered unauthorized practice when engaged in by non-lawyers:18

* Making legal forms available to the general public or publishing legal self-help information.

* Providing general legal information, opinions or recommendations, but not specific advice related to another person's facts or circumstances.

* Providing clerical assistance to complete a court-provided form for protection from harassment or domestic violence or abuse (if no fee is charged).

* Assisting one's minor child or ward in a juvenile court proceeding, when found by the court to be in the child's or ward's best interests.

* Representing a natural person in small claims court, if there is no compensation and with the express approval of the court.

* Representing a legal entity as an employee representative in small claims court.

* Similar representation in an arbitration proceeding, where the amount in controversy does not exceed the jurisdictional limit of Utah small claims courts.

* Representing a party in any mediation proceeding.

* Acting as a representative before administrative tribunals or agencies when authorized by that tribunal or agency.

* Serving as a mediator, arbitrator or conciliator.19

* Participating in certain labor negotiations, arbitrations or conciliations.

* Lobbying governmental bodies as an agent or representative of others.

* Advising others in certain, well-defined, law-related fields.

The list may seem lengthy and a little unwieldy, but it is inherently responsive to changes in the landscape and dynamics of the ever-changing integration of legal components into the interstices of everyday life. Areas of practice open to certain non-lawyers can be directly changed by the Court from time to time through its rule-making procedures without disturbing the underlying definitional structure.

This approach is also consistent with the Utah Constitutional framework for the regulation of the practice of law by the Supreme Court and the current formulation in Rule 6(a) of the Rules of Lawyer Discipline and Disability.

Practice in Legally-Related Areas
The most far-reaching and significant of the areas in which the Court has recognized that non-lawyers are authorized to engage in activities that might be considered the practice of law is specified in ¤ (c)(12):

Advising or preparing documents for others in the following described circumstances and by the following described persons:

(A) a real estate agent or broker licensed by the State of Utah may complete State-approved forms including sales and associated contracts directly related to the sale of real estate and personal property for their customers.

(B) an abstractor or title insurance agent licensed by the State of Utah may issue real estate title opinions and title reports and prepare deeds for customers.

(C) financial institutions and securities brokers and dealers licensed by the State of Utah may inform customers with respect to their options for titles of securities, bank accounts, annuities and other investments.

(D) insurance companies and agents licensed by the State of Utah may recommend coverage, inform customers with respect to their options for titling of ownership of insurance and annuity contracts, the naming of beneficiaries, and the adjustment of claims under the company's insurance coverage outside of litigation.

(E) health care providers may provide clerical assistance to patients in completing and executing durable powers of attorney for health care and natural death declarations when no fee is charged to do so.

(F) Certified Public Accountants, enrolled IRS agents, public accountants, public bookkeepers, and tax preparers may prepare tax returns.20

It is worthy of note that the Court's final adoption of ¤ (c)(12) represents a somewhat more restrictive approach than the Committee's recommendation. Rather than try to describe the specific disciplines, professions and the particular functions that practitioners in those areas could perform without being engaged in unlawful practice, the Committee had recommended a more generic, formulaic approach:

(c) A person is not engaged in the unauthorized practice of law when . . . .

(12) Advising or preparing documents for others by persons whose occupations (i) involve applications of one or more areas of the law and (ii) are regulated or subject to professional oversight by an administrative agency of the State of Utah or by a nationally recognized professional licensing or accreditation organization, if the advice or preparation of documents is directly related to the professional field in which the person is regulated or subject to professional oversight.

Interestingly, after the Committee originally submitted this version to the Court, a comment submitted to the Court prompted the Court to request that the Committee revisit what became known as the "(c)(12) exception." Upon the Committee's submission of an alternate formulation, the Court allowed that it preferred the original version submitted by the Committee.

It is difficult to balance the possible benefits to society of allowing non-lawyers to provide some legally related services with the potential for harm to that same public by persons who are uninformed, incompetent, careless, negligent or worse. On the other hand, the Court has taken a cautious approach to the question of how far to allow non-lawyers to operate in areas that involve the basic ingredients of the practice of law - namely, application of the law and legal principles in the representation of other persons.

Time will tell if the Court has reached the right balance, but I believe that the framework that it has adopted allows it to make necessary modifications to respond with a minimum of disruption to experience under the new rule and to changing circumstances in legal practice in Utah.

In summary, the Court's adoption of Chapter 13a of the Code of Judicial Administration comprises three components: (a) a careful definition of the fields of information and knowledge that make up "the law," (b) a definition of what it means to "practice" in these fields, and (c) a delineation of those activities that may be included in the practice of law, but which may be engaged in by non-lawyers without being considered the unauthorized practice of law.

This definitive action by the Court should end, or at least reduce to minor modifications, the long-simmering difficulties that have surrounded the practice-of-law issue.

1. This article is an outgrowth of a report prepared by an ad hoc subcommittee of the Utah Supreme Court's Advisory Committee on the Rules of Professional Conduct, which the author chaired. The other members of this subcommittee were Steven G. Johnson, Earl M. Wunderli and Nayer N. Honarvar, without whose contributions this article would not have been possible. The views expressed here are the views of the author and not necessarily those of the Advisory Committee on the Rules of Professional Conduct or its ad hoc subcommittee.

2. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) ("I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it . . . .").

3. Utah Code of Judicial Admin., ch. 13a, rule 1.0(a) (2005), http://www.utcourts.gov/resources/rules/ucja/index.htm.

4. 2003 Utah H.B. 349 (subst.), sponsored by Stephen H. Urquhart (a St. George attorney), codified at Utah Code Ann. ¤ 79-9-102(b) (2003).

5. Utah Code Ann. ¤ 78-9-102 (2003).

6. Utah Const. art. VIII, ¤ 4.

7. 905 P.2d 867, 869-70 (emphasis added, citation omitted) (Utah 1995).

8. The mathematicians among us surely recoil at the idea of attempting to define a basic concept by merely providing examples and leaving it to the reader to imagine the exact boundaries.

9. 937 P.2d 1263, 1270 (Utah 1997) (emphasis in the original).

10. Utah Code of Judicial Admin., ch. 14, rule 6(a) (2005) (emphasis added), http://www.utcourts.gov/resources/rules/ucja/index.htm.

11. The Court also adopted the Committee's recommendation to include a set of "official" comments as part of the rule, in a manner analogous to the comments included as part of the Utah Rules of Professional Conduct.

12. Parts of the following discussion are modeled on portions of the Report on the Definition of "The Practice of Law," submitted to the Utah Supreme Court by the Advisory Committee on the Rules of Professional Conduct in August 2004. The author offers no apologies for "lifting" such material, as he was the primary author of the Committee report.

13. Utah Code of Judicial Admin., ch. 16, art. I, "Regulation of the Practice of Law in Utah" (2005).

14. Utah Code of Judicial Admin., ch. 13a, ¤ 1.0(b)(2) (2005) (hereinafter "Chapter 13a"). "Person" includes the plural as well as the singular and legal entities as well as natural persons.Ó Id. ¤ 1.0(b)(3).

15. One of the more obvious problems in the 2003 Legislature's since-repealed enactment of ¤ 78-9-101 of the Utah Code is the failure to recognize the panoply of administrative agencies in which persons' rights and obligations are decided on a regular basis. This is no less a sphere for rendering important legal judgments than is the civil or criminal litigation.

16. Utah Code of Judicial Admin, ch. 13a, ¤ 1.0(b)(1) (2005).

17. Id. ¤ 1.0(a). Just because a Utah lawyer is authorized to practice in any legal area does not mean he satisfies the criterion of competence as set forth, for example, in Utah Rules of Professional Conduct 1.1. This distinguishes authorized practice from competent practice.

18. Utah Code of Judicial Admin, ch. 13a, ¤¤ 1.0(c)(1) - (12) (2005.

19. Strictly speaking, this exception need not be included, as it does not involve the representation of another person and is not the practice of law under ¤ 1.0(b)(1).

20. Utah Code of Judicial Admin, ch. 13a, ¤¤ 1.0(c)(12) (2005).