In doing my research and writing on my chosen topics, I found myself using terminology that I'll probably be using often and decided I needed to address that and some additional "legal" matters before crossing that threshold of other topics. Before someone jumps in and accuses me of practicing law without a license or what Texas calls the "UPL", Unauthorized Practice of Law, let me back up and say a few things about the "practice of law". I will focus primarily on Texas because that is where my experiences have been derived but much of this is likely true for all of the practice of law across the United States.
I used to be a member of the State Bar of Texas (SBOT) but have long since resigned my membership. Oddly, that has not kept them from listing on their rolls ever since. I was not a fan of SBOT before I became a member or while I was a member and certainly am not a fan of theirs now. I know quite a few decent people who are licensed and practicing law in this state. Unfortunately, most have never questioned anything about their own profession's history or current practices and that makes them abysmally ignorant of some very fundamental ideas.
In these, the great United States of America, our founding turned the law on its head. "We the people" decided not to appoint a king or any other dictate from whom law would come and to whom it would belong. The law is ours.
The Catholic Church went to great lengths to keep the Bible from being translated and published. It contained mere words and so the only hope of maintaining control of it and followers was to "hide" it in a foreign language, unavailable to all but the chosen in the Church. Law is mere words as well. The way it is hidden is that it is buried in lots and lots of words, spread through numerous documents and even unwritten sources. And that's just the tip of the iceberg. Nonetheless, the law is mere words and it belongs to us all.
In our wisdom, we created 3 independent branches of government. One of these is the judiciary. It has the right to impose rules within its sphere but only within that sphere. "The State Bar of Texas is an administrative agency of the judicial branch in Texas." The judicial branch of Texas has its own hierarchy and at its head is the Supreme Court of Texas which has administrative control of SBOT, appoints the group who gives the admission exam for SBOT, and they also promulgate the rules for use in the courts. All of that is indeed arguably within their sphere and most of it is arguably outside of their sphere. The funny thing about people is that we always want to control other people and so it is with each group of The Supremes.
Yes, there should be some rules for who can represent others in court and perhaps in other ways but most importantly those being represented are entitled to choose their representative, whether that person is "authorized" by a private membership group or not. SBOT is just that, a private membership club that one may join by jumping through some specific hoops and paying some fees. Perhaps they should be able to rule who is appearing before courts as a representative. Ah, but they can't. Nearly ever person has the right to represent themselves. I might actually leave it be if they stopped at trying to regulate within those courtroom walls but they don't.
An untold number of people have been terrorized and tortured by the Texas UPL Committee for things like publishing forms books, writing letters, negotiating settlements, etc. The Committee gives a few examples on it's website. These examples are intended to strike fear in the heart of anyone thinking of commenting or profiting from the "practice of law" without SBOT's stamp of approval. Here's why...
"The State Bar task force found the current Texas UPL statutes on their face to be over-broad and unrealistic in certain respects. For example, laypersons who gratuitously comment on legal matters and in-house lawyers licensed in other states who advise their employers can be in violation of the statutes, literally-read." Yep, saying to your friend that "you should fight that ticket because the law says..." could very well be the unauthorized practice of law! "Texas’ current statutes are comparable to the UPL statutes of other states.(7) All of the statutes appear to suffer from similar problems of overbreadth and lack of precision." That's legaleze for those laws and rules shouldn't be enforceable. Those two quotes were written a few years ago and can be found here but they're still accurate.
The movement in some areas is to permit non-lawyers to do SOME representing of others but to hold them to the same standard as a lawyer and subject them the the state bar's UPL, as though they were a member of the bar, and or provide for a "private cause of action" (you could be sued by the state bar). This is allegedly to deal with the " lack of clout to deal with well-financed violators of the UPL statutes". ROTFLMAO. Those quotes come from the same source linked above. I must wholly disagree on this. This is a part of what I fondly call the Lawyers Full Employment Act - don't do anything a lawyer might get paid to do or we're going to hammer you out of existence. Mind you, they will probably leave you alone if there's no money to be made or they may decide to torture you if you're making waves in their pool.
How dare The Supremes reach out beyond the courts to regulate the behavior of anyone outside of the courts? Oh, well, that's an easy one. Their membership fills the ranks of another branch of government, the legislature, who granted them the authority to do so. Really? Some days I wonder if SBOT members even remember the Constitutions exist! Congratulations to The Supremes and the Legislature for creating this monopoly in such an elegant fashion that only members of the monopoly get to decide how the monopoly functions and to further drag anyone who dares "practice" before you for punishment to be doled out by the monopoly membership. If other trades or industries behaved in this manner, you'd be counting the legal fees before you could even get the paperwork filed at the courthouse.
To all the members of bar associations out there: It is you who stand blocking the enforcement of the law through your strangle hold on its practice. Each of you participates in keeping people from the most basic legal services, the most basic justices. You should all be ashamed of the arrogance of your profession in thinking it has the right to essentially exclude over 95% of the people from viable access to the law or its enforcement.
In my little old Texas opinion, the law belongs to the people and there cannot be an "unauthorized" practice of it. Of necessity, each of us "practices" law thousands of time each and every day. Each of us has a responsibility to know the law, to help shape it, to abide it, to help enforce it. To be active members of a society based on law, rather than tyranny, that is the only way it can work. We, the people, must make it work and you, the lawyers, must not stand in the way.
With that, I will continue to blog away regardless of the nonsense on the UPLC's website. Next up a discussion of fraud, deceptive practices, misfeasance, malfeasance and/or whatever other of my favorite terms come to mind while I'm writing.