The California Senate is considering a measure that will allow the State Bar of California to collect penalties from those who are found to have committed the unauthorized practice of law (UPL) in the state of California. This measure gives the State Bar a financial incentive to launch investigations—one might say witch-hunts—into economic competitors whom it claims are engaging in UPL. If passed, this provision will grant the State Bar a disproportionate amount of power and essentially set the stage for lawyers to dominate the legal field and prevail over any non-lawyer service provider who provides services even remotely linked to the law.
Beyond the undue amount of power that the bill will grant the State Bar, the measure will also have a chilling effect on non-lawyer service providers. Many other professionals, including legal document assistants, tax preparers, and accountants, often deal with issues that relate to the law. However, these professionals will be deterred from providing some of their services as a result of an increased threat of being found liable for UPL. If there are fewer service providers available, consumers will suffer since there will be fewer options available to them when they need help with problems that have a legal component.
The State Bar claims that the bill will prevent fraud. This is unpersuasive, as state consumer fraud law already has measures in place to penalize those who fraudulently represent themselves as lawyers despite not holding the correct qualifications. In addition, prosecutors are already free to pursue criminal cases of UPL. This bill doesn’t give consumers any additional recourse; it only gives new powers to the State Bar.
UPL enforcement has historically been a tool for lawyers to limit their competition, rather than a means to protect consumers. Only two percent of UPL cases involve actual consumer harm. But even if the State Bar is truly concerned with protecting consumers, then it would make sense for the penalties paid by those found liable for UPL to benefit the victims, rather than to financially enrich the State Bar. Instead, every dollar the State Bar is awarded from UPL defendants will be a dollar that those defendants could not pay to any actual victims of UPL.
The California Senate Judiciary Committee will hold a hearing on the bill, Assembly Bill 888, on June 25. To learn more about the bill’s potential impact, read our testimony to the Judiciary Committee.
The Florida Bar is considering a proposal to place unnecessary restrictions on lawyer referral services. Most people don't use lawyers frequently enough to know how to find one. Lawyer referral services can provide a useful way for people to shop for the lawyer who is right for them. Restrictions on innovation by lawyer referral services, particularly ones that limit how they can operate online, have the effect of limiting access to lawyers for the ordinary person.
You can read our testimony to the Florida Bar on this proposal here.
Connecticut has enacted a new criminal law that could apply sweeping new restrictions on people's ability to receive legal assistance, with punishment ranging up to five years in prison.
The new law, which was Senate Bill 829, changes the state's relatively reasonable definition of practice of law to a much broader one that could potentially encompass a number of professional activities, including the work of doctors, financial planners, and real estate agents. It also could criminalize any non-lawyer giving advice to a friend or family member about how to fill out paperwork or how to handle any other matter involving legal rights.
The bill also raises the penalty for unauthorized practice of law from a class C misdemeanor, with a maximum sentence of three months, to a class D felony, punishable by up to five years in prison. This is the same sentence applicable to crimes such as jury tampering and third degree burglary.
Responsive Law was the only group to testify against this proposal, speaking out on behalf of the people whose professional behavior may be criminalized and those whose access to legal information may be chilled. Our testimony on this bill can be found here.