The Wyoming State Bar’s Committee on the Unauthorized Practice of Law recently proposed a substantial revision of the rules governing the authorized (and unauthorized) practice of law in the state. The Wyoming Supreme Court has the actual rule-making authority, but the UPL Committee’s voice carries weight, and its proposal for “Rule 7” is likely to shape future law. Proponents of UPL rules often claim that they are intended to protect consumers of legal services, but their effect is usually the opposite. The specifics of UPL rules can have a major impact on law-related fields: When “the practice of law” is broadly defined, it includes all or some of the activities of many non-lawyer professionals, and when “who may practice law” is narrowly defined, these non-lawyer professionals might find themselves in violation of the letter, if not the spirit, of UPL rules. The chilling effect bad UPL regulations can have on non-lawyer legal service providers restricts competition, which gives attorneys a broad monopoly and drives up costs for consumers.
When the Wyoming UPL Committee opened its proposal up for public comment, Responsive Law took the opportunity to weigh in. The verdict? Lukewarm support. While the proposed rule was an improvement on the existing definitions, it was lacking in a few key ways. Responsive Law offered its own version of the proposed rule, one which would better serve Wyoming’s consumers.
Responsive Law was far from the only commenter to find fault with the proposal. A common issue was the provision allowing certain non-lawyers to fill out “standardized forms” for their clients. This is a common-sense UPL exemption: It is clear that consumers are best served by allowing skilled professionals, such as licensed real estate brokers, to fill out the forms relevant to their work. The problem lay in the proviso that non-lawyers would not be allowed to “provide counsel or advice … with respect to the meaning, validity, or legal effect of the document or regarding the rights and obligations of the parties.” That’s right: Under the proposed rule, real estate brokers and title insurance companies could fill out some legal documents for you—but would be legally prohibited from telling you anything about said forms.
Likewise, other commenters pointed out that the list of “not prohibited” activities (that certain non-lawyers could perform) was missing important groups. Landmen, who play a key role in coordinating use agreements between energy extraction companies and Wyoming landowners, were left out in the cold. So were CPAs. These groups could have had their long-standing professional practice suddenly made illegal, and their members plead to be added to the list. The real problem is that no such list of exemptions could be exhaustive: Without a general rule describing what sets these professional activities apart, it's guaranteed that some worthy profession will be left off the list, to the detriment of consumers.
Three changes would drastically improve the proposed rule. First, the prohibition on non-lawyers providing advice or counsel concerning standardized forms should be dropped. Second, the specific profession/activity combinations listed as being exempt from UPL restrictions should be supplemented with a general rule. This general rule could easily be constructed by synthesizing the common aspects of the given exemptions. Finally, it remains true that law-related services offered for free should not be subject to broad UPL restrictions. Responsive Law made the case for enacting these changes, going so far as to offer a revised version of the proposed rule. If adopted by the Committee, these changes would ensure consumers’ access to services provided by non-lawyers, even if those services touch upon the practice of law.
Responsive Law's full comments, including the improved version of the proposed rule, are available here.
Danny Foster is a Responsive Law intern.