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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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