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Vanderbilt Law Review

First Page

179

Abstract

Lawyers love to compete, but only with each other. The legal profession consistently has fought outside competition and successfully has controlled competition to ensure professional survival. Lawyers control competition through participation in bar associations, legislatures, and courts. For example, state statutes and bar association regulations' forbid the practice of law by nonlawyerss To enforce this prohibition, all states require that state and professional bar associations certify individuals as competent legal practitioners before they can practice law. Courts generally have upheld these statutes and regulations. Thus, lawyers have succeeded in limiting outside competition.

These limitations, however, may be resulting in denial of access to the legal system to the indigent public.' Consequently, several states are attempting to alter existing restrictions on the unauthorized practice of law (UPL). In particular, the State Bar of California currently is considering a proposal to replace its restrictions with a rule of court allowing nonlawyers to practice law.

In July 1990 the California Bar's Commission on Legal Technicians (Commission) issued a proposal (1990 Report) setting forth specific guidelines allowing nonlawyers to practice law. The Commission attached to the 1990 Report two proposed bills drafted by California legislators to regulate nonlawyers. In August 1990 the Board of Governors of the State Bar of California (Board) released the 1990 Report including the attached bills without endorsement for a ninety day public comment period. That period ended November 28, 1990. The Board now must consider the 1990 Report, the public comments, and its course of action.

This Note examines the 1990 Report and the attached bills in light of current trends toward increased nonlawyer participation in the legal profession. Part II reviews the history of regulation of UPL in the United States and specifically examines the difficulty courts have had in defining "the practice of law." Part III discusses recent developments in other jurisdictions that have tried, some successfully, to allow limited nonlawyer participation in the profession. Part IV overviews the development and content of the 1990 Report and attached bills and concludes that the 1990 Report and proposed legislation reflect, and technicians' may provide greater access so long as their activities do not pose an unreasonable risk of harm to the public." Nov. 1989 Resolution by the Board of Governors of the State Bar of California (on file at Vanderbilt Law Review).

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