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MCLE Self-Assessment Test

State Bar to look at limited-practice licensing program

By Laura Ernde
Staff Writer

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 legal needs.”

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 practicing law.

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 enforcement agencies.

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 Sacramento.