A recent article by Stanford law professor Deborah Rhode outlines the results of the most comprehensive study of unauthorized practice of law (UPL) enforcement in many years; since her own study in the early 1980s, in fact. The entire article is worth reading. However, I’d like to call particular attention to a few points that illustrate that while the bar has grown more rhetorically adept at making the argument for wide prosecution of UPL cases, the facts underlying that argument remain as unpersuasive as they’ve been for decades.
The bar frequently argues that prosecuting UPL cases is necessary to protect legal consumers from fraud. Yet a 1981 study by Rhode showed that over half of bar respondents didn’t even take consumer complaints on UPL issues, and only a tiny percentage of UPL cases were based on consumer concerns. According to those results, the bar’s argument that UPL was aimed at helping the legal customer fell entirely flat.
Although Rhode’s new study appears to show that UPL authorities are now more likely to consider consumer harm, it actually only demonstrates that the bar has gotten better at saying what it thinks the public wants to hear. In Rhode’s new survey, almost all of the respondents claim to have taken at least a quarter of their UPL complaints from legal customers. However, when Rhode continued her interviews, she found that over two-thirds of the respondents could not name a situation during the past year where a UPL issue had caused serious public harm. Even though they were apparently taking at least 25% of all UPL complaints directly from ordinary consumers, the bar respondents did not know how UPL had hurt those legal customers. Either those surveyed had very bad memories, or consumer harm was not their true motivation for UPL prosecution.
The bar often uses the fear of “notario fraud” to build support for broader UPL laws. In Spanish, the meaning of the word ‘notario’ varies from country to country—in some countries it means ‘notary’ and in some it means ‘lawyer’. People emigrating from countries where ‘notario’ means ‘lawyer’ can be misled into believing that someone who is a notary is actually a lawyer through essentially false advertising. These scam artists can also use other misinformation to defraud immigrants with little knowledge of English or the American legal system. Without UPL restrictions, the argument goes, these people would be even more vulnerable to legal fraud.
In reality, the bar is using the fear of notario fraud as the camel’s nose under the tent to enact sweeping UPL laws that encompass all sorts of services that are helpful to consumers, rather than the small minority that are fraudulent and harmful. In Rhode’s study, only about 3% of the total UPL cases litigated dealt with immigration. Of course, those engaging in this sort of fraud can—and should—be prosecuted under existing consumer fraud laws. In fact, Rhode speculates that prosecution of notario fraud “when it occurs, happens under fraud and theft statutes rather than UPL statutes.” Essentially, the consumers whom the bar uses as a prime example of the need for UPL make up just a tiny percentage of the actual cases prosecuted. So who exactly is protected by the remaining 97% of UPL cases? If there are consumers being protected by these cases, one would think the bar would mention them more often, rather than focusing its arguments on notario fraud.
Courts are also complicit in the pro-lawyer, anti-consumer bias found in UPL cases. Rhode’s article shows that courts adjudicating UPL cases rarely considered whether people were hurt by alleged UPL, much less how they were hurt. Only about a quarter of reported cases discussed public harm when litigated, despite the bar’s continued statements that UPL exists to protect the consumer. In the court cases where it was mentioned, public harm was used only to aid in determining a penalty, rather than to discuss how UPL harmed the consumer in question. Thus, even if UPL restrictions are intended to protect consumers, courts are not applying them for that purpose.
Cases that are litigated under UPL restrictions can also include legal services rendered which were actually helpful to consumers. Regardless of whether or not the person offering legal services provided a useful or even desperately needed service, he/she can be penalized under UPL restrictions. If these rules existed to protect and aid legal customers, as the bar states, a legal service that was helpful to the person receiving it should not be litigated under UPL. Yet Rhode found evidence supporting the lack of interest in interpreting UPL cases from a consumer point of view—only 11 percent of the UPL cases discussed whether or not the violation in question had met an important public need. The UPL services in question may have actually benefited legal consumers, but the bar and the courts chose to ignore the interests of the public.
One of Rhode’s conclusions is that “[a] more consumer-oriented approach would also vest enforcement authority in a more disinterested body than the organized bar.” The bar may state that UPL litigation is aimed at protecting the consumer, but Rhode’s article proves that this is a tired statement without much substance. While the bar may have become more adept at selling this argument, it’s no more true than it was when Rhode first studied the topic three decades ago.