State Bar to look at limited-practice licensing program
By Laura Ernde
The State Bar Board of Trustees has expressed interest in
examining a limited-practice licensing program that would create a new class of
professionals who could give legal advice.
At a retreat in San Diego last month, at which the board
explored various ideas for improving public protection and the State Bar’s
regulatory function, some trustees said such a licensing program would not only
provide valuable legal services to the public, but also allow law students and
others who haven’t passed the bar to put their skills to use.
Trustee Heather L. Rosing said those who can’t afford the
services of a licensed attorney are often forced to turn to non-lawyers because
of cost. Although legal aid, pro bono service and court-employed family law
facilitators all try to fill this gap, too many people need legal assistance
and simply cannot afford it at today’s legal market rates.
“We’ve created somewhat of a black market,” she said. “We
are simply not serving the vast majority of citizens when it comes to their
A limited licensing program, in addition to helping
clients, would create an avenue of employment for law school graduates and
legal technicians who haven’t passed the bar, board members said. Engaging in
limited practice might be an avenue to eventually becoming a qualified lawyer.
Trustee Dennis Mangers, a former state legislator and
public member of the board, acknowledged that such a proposal may not be
popular among some in the legal profession. But he urged his colleagues to
consider a new licensing program such as one being launched in Washington state.
Washington has authorized professionals called Limited
License Legal Technicians to provide technical help to clients with fairly
simple law matters. Regulations are still being developed, but once finalized legal
technicians will be able to select and complete forms, inform clients of
procedures and timelines, review and explain pleadings and identify additional
documents that may be needed. Law Societies in Canada are also moving into the
area of regulating paralegals there.
In California, the State Bar gets hundreds of complaints
a year about individuals and businesses practicing law without a license,
claiming that they can solve legal problems for consumers, Assistant Chief
Trial Counsel Dane Dauphine said after the retreat.
Because it doesn’t have jurisdiction over non-attorneys,
the State Bar generally tries to address the problem by sending
cease-and-desist letters to the offenders and reporting the offenders to other
law enforcement agencies, Dauphine said. Unauthorized practice of law, or UPL,
is a crime punishable by a misdemeanor conviction. (Business and Professions Code Section
6125 et seq).
But in reality, law enforcement has other higher
priorities to address, State Bar Deputy Executive Director Robert Hawley said.
Many of the biggest abuses occur in immigrant communities where people don’t
understand that the legal system here is different than in their home countries.
For example, professionals called “notarios” in some Latin American countries
can perform many official acts and are confused with notary publics in the
United States, which are much more limited in what they can do, he said.
California currently allows non-lawyers to perform some
legal tasks that don’t constitute the practice of law, such as helping people
fill out legal forms. Paralegals working under the supervision of licensed
attorneys (Business and Professions Code Section 6450 et seq), unlawful
detainer assistants, legal document assistants (Business and Professions Code
Section 6400 et seq) and immigration consultants (Business and Professions Code
Section 22440 et seq) registered by the county clerks or California’s Secretary
of State all can assist consumers with legal needs in limited ways, short of
One long-standing challenge for attorney regulators has
been defining what actually constitutes the practice of law, Hawley said.
Educating the public about the law in general is not the practice of law. But interpreting
legal authorities and customizing them to fit a consumer’s specific legal needs
does invoke the practice of law, at least theoretically.
This theory falls apart when one examines what accountants
do during tax season as opposed to tax lawyers and what real estate agents and
brokers do in putting real estate transactions together as opposed to real
estate lawyers, he said.
“Where the line is drawn in these circumstances is murky
at best. But at least with accountants and real estate agents and brokers,
their training and state license requirements set standards and offer protections
for the public,” Hawley said. “That does not occur with those who simply decide on their own to offer legal assistance to the public without any kind of
certification, licensure or registration.”
Board members discussed other ideas at the retreat,
including gathering more data about lawyers to stay abreast of trends affecting
admissions and discipline, and raising money to entice lawyers to practice in
underserved communities. Board members also expressed interest in
institutionalizing the outreach bar employees have done with other law
Board President Patrick M. Kelly said he was pleased with
the ideas that came out of the retreat, which show the bar is laser-focused on
its regulatory mission of public protection.
Kelly said he plans to work with staff and revisit some
of the ideas at the next board meeting, scheduled for March 6 and 7 in