UPL (Unauthorized Practice of Law) the TYRANNY of a TENUOUS TURF

UPL (Unauthorized Practice of Law) – THE TYRANNY OF A TENUOUS TURF

By Judge Navin-Chandra Naidu

Hong Kong, June 5, 2012

”If the ordinary man could have more direct contact with the legal system, then he might, take the control of his civilization out of the hands of those modern purveyors of streamlined voodoo and chromium-plated theology, the lawyers.”

Yale Professor Fred Rodell, WOE UNTO YOU, LAWYERS! 13 (1980 ed.)

I am somewhat relieved that the use of the word “unauthorized” is not as lethal as “unlawful.” The turf and terrain protectors, all of whom were, and are, persons learned in the law, were careful about choosing their words. Linguistics, semantics, and syntax, diligently digging deeper. I believe they will be losing ground slowly but surely despite legislation in several States where UPL is a misdemeanor. Imagine a monopoly having legislative protection and security. The free market forces does But if these statutes are unconstitutional? Can they stand on their own?

The bar associations who are bent on protecting their monopoly have to be silenced by effective counter-legislation. The question as to who or what authorizes the practice of law becomes meaningful and enlighteningly delightful when you explore this dubious proposition - UPL - especially when viewed from the freedom of speech premise. Are you not free to speak on behalf of another if you are learned in the law despite having not had the benefit of a law degree or law school attendance?

Some famous American lawyers who never went to law school, and yet served their country and calling with wisdom, vigor and passion are:

~Patrick Henry (1736-1799), member of the Continental Congress and Governor of Virginia;

~John Jay (1745-1829), first Chief Justice of the US Supreme Court;

~John Marshall (1755-1835), fourth Chief Justice, US Supreme Court;

~William Wirt (1772-1834) Attorney General;

Roger B Taney, fifth Chief Justice, Secretary of the Treasury; Daniel Webster (1782-1852) Secretary of State;

Salmon P Chase (1808-1873), Senator, and Chief Justice, of the US Supreme Court;

Abraham Lincoln (1809 – 1865), 16th President of the US; Stephen Douglas (1813-1861), Representative, Senator from Illinois;

~Clarence Darrow (1857-1938), defense attorney in the Scopes trial of 1925;

~Robert Storey (born 1893), President of the American Bar Association 1952-1953;

~Robert Morley, President of the American Bar Association 1953-1954;

~J Strom Thurmond (born 1902) Senator, Governor of South Carolina;

~James O Eastland (born 1904) Senator from Mississippi; Associate Justice ~Robert H Jackson, US Supreme Court; Associate Justice Stanley Reed.;

~Justice Albert Hayden Ellett, Utah Supreme Court (ret. 1979).

So, if you have what it takes to understand the law from the vantage points of statutes enacted by the legislatures, the constitution, past decisions (doctrine of stare decisis) the principles of law, the restatement of the laws, maxims and doctrines of law, etc. you ought to be ready, willing and able to represent parties who require and request your services as a lawyer.

“Learned in the law” is a wonderfully refreshing term that is used for self-taught lawyers, and autodidacts, in the past and in the present. Harvard University was established in 1636, and yet, a host of our eminent jurists never attended its law school, but they blessed us with their enduring wit and wisdom regarding the social, cultural, religious, economic, political and military state of the Union vis-à-vis the law.

Thus far, nobody has been harmed, hurt, injured or disadvantaged because of defective counsel in the ranks of the “unlicensed attorneys.” The incidents of defective counsel amongst the licensed army of attorneys is legion.

If A wishes B to defend him and pays him x number of dollars to counsel and defend him during trial knowing that B is an unlicensed legal practitioner, there is Article 1, section 10 of the United States Constitution – the supreme law of the land – that confirms the unalienable fact that “no State shall impair the obligation of a contract.” A and B have a valid contract notwithstanding the Sixth Amendment of the United States Constitution that assures effective, not defective, assistance of counsel and does not say, mention, state or stipulate that effective counsel shall be a state licensed attorney or legal practitioner. It excludes that particular requirement of a license. Enumeratio unius est exclusio alterius – the special mention of one thing implies the exclusion of another. This is a cardinal rule observed and employed in the construction of Acts of a legislature (statutes).

At first blush, UPL (Unauthorized Practice of Law) is nothing but a monopoly insisted upon by attorneys who are members of their local Bar Association. There is nothing wrong with being a member of a club, society, association or a guild under the freedom of association. But when you advance monopolistic rights, you tread dangerously into antitrust laws, like the Sherman Antitrust Act, which forbids and prohibits monopolies in trade and commerce.

“Monopoly in trade, or in any kind of business in this country, is odious to our form of government… Its tendency is, however, destructive of free institutions, and repugnant to the instincts of a free people, and contrary to the whole scope and and spirit of the federal constitution, and is not allowed to exist under express provisions in several of our state constitutions . . . All combinations among persons or corporations for the purpose of raising or controlling the prices of merchandise, or any of the necessaries of life, are monopolies, and intolerable; and ought to receive the condemnation of all courts.” Richardson v. Buhl, 77 Mich. 632, 635, 657, 660, 43 N.W. 1102, 1910 – a leading case on the question as to what combinations are illegal in general restraint of trade.

Because the transactions which create the need for the particular legal services in question frequently are interstate transactions, the practice of law is now regarded as a commercial activity subject to the strictures of the Sherman Act. Goldfarb v. Virginia State Bar, 421 U.S. 773, 783-784 (1975).

In Leis, et al v. Flynt, 439 U.S. 438, 99 S. Ct. 698, 58 L.Ed. 2d 717 (1979) the high court held that “Rules of ethics that once insulated the local lawyer from competition are now forbidden by the Sherman Act and by the First Amendment to the Constitution of the United States. Work that was once the exclusive province of the lawyer is now performed by title companies, real estate brokers, corporation trust departments and accountants.

So, the antitrust monopoly-guarding-turf is forbidden by the Sherman Act especially where money is exchanged for (legal) services and thus fits into the definition of commerce without confusing the “learned profession” excuse or explanation. There is no question that bar associations are violating the Sherman Act each time they cry fowl and scream UPL.

When Bar associations make up rules and regulations, or as in some States, legislate UPL, the need and plea for judicial review must necessarily arise. “An unconstitutional law is void,” stated Associate Justice Benjamin Cardozo, in his seminal work, The Nature of the Judicial Process, New Haven: Yale University Press, 1921, p.14, where he went further to add:

“The Constitution overrides a statute, but a statute, if consistent with the Constitution, overrides the law of judges.” Here, this great jurist must have taken into consideration the inexorable fact that the Constitution is the supreme law of the land, and that activist judges are subservient to the will of Congress as interpreters of the law even if applying and following the law ends in absurdity..

But, the crucial test and question is whether UPL is constitutional?

In Abood v. Detroit Board of Education, 431 U.S. 209, S. Ct. 1782, 52 L. Ed. 2d 261 (1977), the U.S. Supreme Court held that the freedom of expression includes freedom of association and guarantees the right to associate or refuse to associate with whomever one chooses. In essence, based on this ruling, if you are self-taught in law and not a member of the State Bar Association, what stops you from representing a relation, a friend or anyone for that matter since the constitutionally protected First Amendment rights are involved?

In Lousiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 297, the U.S. Supreme Court declared that “regulatory measures . . . no matter how sophisticated, cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of First Amendment rights . . .

In Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964), 84 S. Ct. 1113, 12 L. Ed. 2d 89, the U.S. Supreme Court found that “. . . but we have had occasion in the past to recognize that in regulating the practice of law a State cannot ignore the rights of individuals secured by the Constitution. For as we said in NAACP v. Button, 371 U.S. 415 at 429 (1963), “a State cannot foreclose the exercise of constitutional rights by mere labels.”

The “Next Friend” doctrine was advanced by Justice William O Douglas in Johnson v. Avery, Commissioner of Corrections, et al, 393 U.S. 483 (1969), 89 S. Ct. 747, 21 L. Ed. 2d 718 – To act as next friend to any person in the preparation of any paper or document or claim, so long as he does not hold himself out as practicing law or as being a member of the Bar.

In Sperry v. Florida, 373 U.S. 379 (1963), the US Supreme Court declared that “the power of the States to control the practice of law cannot be exercised so as to abrogate federally protected rights. Here the high court was obviously referring to the freedom of speech component of the First Amendment, Bill of Rights. (never been overruled!)

“There is no statutory definition of the practice of law, and the application of UP sanctions are selectively applied, which renders the allegation unconstitutional for vagueness and failing to provide equal protection,” said the U.S. Supreme Court in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982).

"It is a basic principle of due process that an enactment is void for vagueness, if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. " Edwards et al v. South Carolina, 372 U.S. 229, 83 S. Ct. 680 (1963), 9 L. Ed. 2d 697. UPL investigations fall into this category, being subjectively decided in an administrative proceeding.

In England, UPL is virtually unheard of when viewed from the decision in McKenzie v. McKenzie [1971] P.33 (C.A.), which permitted laymen to provide in-court advice, and reporting no disruptive consequences where the precedent has been invoked. This has been called the “McKenzie Man” doctrine. This helped me in Fiji when I defended George Speight in Fiji after I was unceremoniously accused of not having a law degree! Freemasons buried me alive. Speight was facing the death penalty for treason. He is alive and well today in 2012 as I write this.

Trial courts have occasionally permitted unlicensed practitioners to advise pro se criminal defendants. See U.S. v. Whitsel, 543 F. 2d 1176 (6th Cir. 1976) cert. denied, 431 U.S. 967 (1977) and U.S. v. Stockheimer, 385 F. Supp. 979 (W.D. Wis. 1974).

Chief Justice Warren Burger expressed a vitriolic sentiment when he said that "one third and one half of the lawyers who appear in . . . serious cases are not really qualified to render fully adequate representation." “The Special Skills of Advocacy,” 42 Fordham Law Review 227, 234 (1973). Similar sentiments were advanced by Bazelon in “The Defective Assistance of Counsel,” 42 University of Cincinnati Law Review 1 (1973). See also Oakes, “Lawyer and Judge: The Ethical Duty of Competency, in ETHICS AND ADVOCACY 59, 71 (19718) for similar observations about the competency of law graduates with bar cards.

Basic Principles on the “Role of Lawyers” Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990:

The command and demand by the State Bar for licensing legal practitioners is predicated upon protecting the public from defective, ineffective or unqualified counsel. But this is akin to coloring the canvas with a mischievous and misconceived brush with an irresponsible hand. There are records of hundreds of people who have had the misfortune of occasioning ineffective lawyers. Hundreds of lawyers have been disbarred for a variety of lapses in judgment and integrity.

There are those who have been self-taught in the law who seem better qualified, and more able and capable, in representing others who by choice demand such talent and skill. But the local court will deny the peoples’ advocate merely because he or she does not have a bar card.

The government (municipal, state and federal) does NOT want the citizenry learned and intellectually ready. They prefer you mundane and enslaved with mediocrity. Visit law libraries to become an autodidact as often as you can. IT'S FREE access, light, heat, bathrooms, and air-conditioning. FREE IS GOOD, right?

I have read and reviewed the following articles on UPL, and advance these findings to pause and ponder whether the Bar associations around the country have a real issue with guarding their turf and whether they are justified in protecting that dubious terrain. They are certainly violating the Sherman Antitrust Act when they openly declare that they are guarding their monopoly in the “practice of law.”

1. Stanford Law Professor Deborah Rhode “Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions,” Stanford Law Review, Volume 34:1 (1981). This seminal work failed to find consumer harm caused by UPL. These same studies have concluded that virtually all complaints about UPL come from lawyers protecting their turf.

1. “On Letting the Laity Litigate: The Petition Clause and Unauthorized Practice Rules, University of Pennsylvania Law Review, Vol. 132:1515.

1. Christensen’s The Unauthorized Practice of Law: Do Good fences Really make Good Neighbors – Or Even Good Sense?, 1980 American Bar Foundation Research Journal 159.

1. Weckstein’s “Limitations on the Right to Counsel: The UPL, 1978 Utah Law review, 649, 677.

1. Control of Unauthorized Practice of Law: Scope of Inherent Judicial Power, 28 University of Chicago Law review 162 (1960).

1. The Unauthorized Practice Controversy, A Struggle Among Power Groups, 4 University of Kansas Law Review, 1 (1955).

1. Cedarquist, Lawyers at the Crossroad – Profession or Trade? 31 UNAUTHORIZED PRACTICE NEWS 79 (1966)

1. R. Hetlage, U.S. Supreme Court decisions During the Past decade Affecting the Field of Unauthorized Practice of Law, 39 UNAUTHORIZED PRACTICE NEWS 17 (1974).

1. Carlson, Measuring the Quality of Legal Services: An Idea Whose Time Has Not Come, 11 Law & Society Review 287 (1976)

1. J. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (1976).

1. Project, The Unauthorized Practice of Law and Pro se Divorce: An Empirical Analysis, 86 Yale Law Journal, 104, 123-29 (1976).

1. Moore, The Purpose of Licensing, 4 J.L. & Econ. 93, 110-13 (1961)

1. Holen, Effects of Professional Licensing Arrangements on Interstate Labor Mobility and Resource Allocation, 73 J. Pol. Econ. 492 (1965)

1. Maurizi, Occupational Licensing and the Public Interest, 82 J. Pol. Econ. 399 (1974)

1. Getz, Siegfried & Calvani, Competition at the Bar: The Correlation Between the Bar Examination Pass Rate and the Profitability of Practice, 67 Virginia Law review 863 (1981)

1. Gellhorn, The Abuse of Occupational Licensing, 44 University of Chicago Law Review 6, 26 (1976)

1. Reich, Toward a New Consumer Protection, 128 University of Pennsylvania Law review 1, 35 (1979)

1. Wolfson, Trebilcock & Tuohy, Regulating the Professions, A Theoretical Framework, in OCCUPATIONAL LICENSURE AND REGULATION 180 (1980).

1. M. Friedman, Capitalism and Freedom 137-60 (1962)

1. Project, An Assessment of Alternative Strategies for Increasing Access to Legal Services, 90 Yale Law Journal 122, 145 (1990).

1. Morrison, Breaking Up the Legal Monopoly, 1 New Directions In Legal Services 113 (1976).

1. Pine, Antitrust Suit Against N.Y. Bar Group Settled, National Law Journal, Aug. 3, 1981, at 7, col. 1

1. Slonim: Federal Trade Commission Future Discussed as Lawyer Probe Renews, 66 A.B.A. Journal, 1056 (1980). The FTC conducted an inquiry into the competitive effect of state bar regulations on the delivery of legal services.

1. Bristol, The Passing of the Legal Profession, 22 Yale Law Journal 590 (1913). This is the a rare article protecting the profession than advancing public interest/

1. Adler, Unauthorized Practice: A Continuing Campaign in the Public Interest, 44 A.B.A. Journal 649, 651 (1958).

1. S. Bass, Unauthorized Practice Source Book: A Compilation of Cases and Commentary on UPL (rev. ed. 1865); J. Fischer & D. Lachmann, Unauthorized Practice Handbook: A Compilation of Statutes, cases and Commentary on UPL (1972); L. Hale, Unauthorized Practice Source Book (1958); F. Hicks and J. Katz, Unauthorized Practice of Law (1934).

1. Llewellyn, The Bar’s Troubles, and Poultices – and Cures?, 5 Law & Contemporary Problems 104 (1938)

1. The Practice of Law by Corporations, 44 Harvard Law review 1114 (1931).

1. G. Brand, Unauthorized Practice Decisions (1937)

1. Remedies Available to Combat the UPL, 62 Columbia Law review 501, (1962)

1. R. Burkett, Unauthorized Practice of Law – An Overview From California 1 (1979).

1. The Unauthorized Practice of Law by Laymen and Lay Associations, 54 California Law review 1331, 1343 (1966)

1. Bramblett, UPL Investigations, 51 Florida Bar Journal, 596, 597-98 (1977)

1. Morrison, Defining UPL: Some New Ways of looking at an Old Question, Nova Law Journal 363, 374 (1980)

1. Friedman, Freedom of Contract and Occupational Licensing 1890-1910: A Legal and Social Study, 53 California Law Review 487 (1965).

1. UPL: The Lawyers Monopoly Under Attack, 51 Florida Bar Journal 600 (1977).

1. Levin & Goldberg: UPL: An Overreaction to Surety Title Insurance Agency v. Virginia State Bar, 4 NEW DIRECTIONS IN LEGAL SERVICES 42, 44, 49 (1979).

1. Trubek & Trubek: Civic Justice Through Civil Justice: A New Approach to Public Interest Advocacy in the United States, in ACCESS TO JUSTICE AND THE WELFARE STATE 119, 143 (M. Capelletti ed. 1980)

1. Wolfram, Barriers to Effective Public Participation in Regulation of the Legal Profession, 62 Minnesota Law review 619, 642-43 (1978).

1. C. Page, Who Owns The Professions, HASTINGS CENTER REP. Oct. 1975, at 7, 8.

1. Bittker: Does tax practice by accountants constitute UPL, 25 J. TAX’N. 184, 187 (1966).

1. Martyn, Lawyer Competence and Lawyer Discipline: Beyond the Bar? 69 Georgia Law Journal, 705, 723-24 (1981); White, The Definition of Legal Competence: Will the Circle be Unbroken? 18 Santa Clara law review 6451, 648 (1978).

1. Bowles, Report on Litigation Involving Bar Examinations, 44 Bar Examiner 134 (1975).

1. Payne, Title Insurance and the UPL Controversy, 53 Minnesota Law Review 423 (1969).

1. Hyrne, UPL in Estate Planning & Administration: A Mild and Temperate Dissent, 29 University of Florida Law review, 647 (1977).

Caveat: This is not exhaustive. These are the references I was able to find. I believe they are sufficient to make a point to any state or federal judge.