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Lawyers Lose a Round Against Competitors

by Steve Elias and Ralph Warner
Copyright © 1995 Nolo Press

Since the early days of this century, non-lawyers who have competed with lawyers have been prosecuted for a crime: engaging in the "unauthorized practice of law" (UPL). And because these cases have almost always been decided by lawyer-judges, convictions have been all but certain. But recently, in a surprising and encouraging development, two Florida trial court judges--in separate cases--ruled that Florida's UPL statute is unconstitutional, and dismissed UPL charges against the paralegal defendants.

The defendants were a husband-and-wife paralegal team, Scott and Martha Foster. From time to time they represented people in depositions, out-of-court proceedings at which witnesses or parties to a lawsuit give statements under oath. On the theory that only attorneys can participate in depositions, the Fosters were hauled into court under a state statute that makes it a misdemeanor for anyone but a licensed lawyer to "practice law" or hold himself out to the public as qualified to practice law."

Defending themselves, the Fosters pointed out that the statute doesn't define "practice of law," so they had no way of knowing what conduct might land them in trouble. Under the due process clause of the U.S. Constitution, a criminal statute is void if it is so vague that people can't know when they are violating it.

The Fosters' defense, while logical, was headed uphill. Years earlier, the Florida Supreme Court had sustained a UPL conviction under this law, even while admitting that "any attempt to formulate a lasting, all encompassing definition of 'practice of law' is doomed to failure for the reason that under our system of jurisprudence such practice must necessarily change with the everchanging business and social order." (Bar v. Brumbaugh, 333 So. 2d 1188.)

And yet, at Scott Foster's trial, the judge--who, coincidentally, is one of Florida's few non-lawyer judges-- ruled the statute void for vagueness after hearing evidence that even several attorneys didn't think the statute forbids non-lawyers to participate in depositions. (State of Florida v. Scott Foster, No. 94-28099 MMA.) The lawyer-judge who heard the case of Martha Foster came to the same conclusion and dismissed the case against her.

Most states have statutes similar to Florida's. In others, judges can hold people who "practice law" without a license in contempt of court, and punish them with fines or even jail. Only Arizona and Texas do not treat UPL as a criminal offense.

In many states, the UPL criminal laws have been challenged because of their vagueness. And lawyer-judges have uniformly upheld the laws, essentially reasoning that because the practice of law is what lawyers do, non-lawyers should know that they aren't allowed to do anything that lawyers are already doing. Case closed.

Unfortunately, if history is a guide, the two Florida judges will be reversed by appellate judges (lawyers all) who are so zealous to root out competitors that they have little patience with people who accurately point out that the underlying crime is impossible to define. But then again, maybe not. We may be approaching the time when an appellate court is brave enough and wise enough to rule that the unauthorized practice of law statutes are built on constitutional quicksand.

To adapt Lincoln's famous saying, you can fool all of the judges some of the time, and some of the judges all of the time, but you can't fool all of the judges all of the time.

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The selected articles originally appeared in the Nolo News and are Copyright © Nolo Press 1996 and reproduced here with permission. If you find them of value, we encourage you to visit Nolo Press at their web site If you wish to post them on-line or otherwise distribute them, first read Nolo's copyright policy.

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