A rose may be a rose but UPL does not always mean the same thing as UPL.

So, you likely have read about or stumbled into something on the web about the remarks offered by the founder of Avvo at the ABA Meeting.  If you somehow missed having that hit your radar screen at all, you can read about it (and snippets of the remarks of the other folks who gave similar Ted-talk-styled remarks at the ABA Journal online) here.  (And, you ought to read all of the comments as they are as interesting/revealing as the story itself.)

The tl:dr version is that Avvo’s founder suggested that if the legal profession wanted to “innovate” and promote access to justice it should “get rid of UPL.”  If you’ve now spent the time reading all of the comments posted on the article, you’ll see that got at least few people pretty riled up by that and don’t have much to say about any of the other talks detailed in the piece.  Unsurprisingly, analogies were quickly offered up with the practice of medicine and whether it would be seen as “innovative” to allow anyone off the street to practice medicine, etc.  Universally, it seems that the reference to  “UPL” made by the speaker is being treated as saying that we should permit non-lawyers to practice law and, perhaps it was.  But there are two separate and distinct categories of things that both fall under the terminology of “UPL,” and I think it worth remembering the distinction in this context.  In addition to referring to the practice of law by a nonlawyer as UPL, we also refer to the practice of law by a lawyer in a jurisdiction other than the one in which she is licensed as UPL as well.

These are usually situations governed by completely separate regulatory entities and approaches.  For example, in Tennessee, UPL of the first variety can be by the state Attorney General’s office and is governed by a statute that makes the commission of the offense a crime.  UPL of the second variety (though there is nothing explicitly in Tennessee statutes saying it cannot be taken up by the AG’s office) is addressed by the Tennessee Board of Professional Responsibility in the form of potential disciplinary proceedings against the person for violations of RPC 5.5.

I tend to find that lawyers generally are more attuned these days to risks regarding cross-border practice.  I know and have encountered quite a few lawyers who take a very risk-averse approach to the topic by questioning whether they can represent a client in a dispute in state Y when they are only licensed in state X or whether they can advise a client about state Z’s laws when they are only licensed in state X.  Obviously not all lawyers are attuned to the risk or risk averse as we’ve seen in two cases getting some publicity this month – the first is only in part a story about UPL as the disbarment order visited upon an attorney who served as managing partner of a Maryland law firm without being licensed in Maryland is as much about fees charged to clients when no work was performed, trust accounting violations, lack of competence, and failure to supervise others in the firm as it is about the fact that the lawyer was only licensed in jurisdictions other than Maryland.  (And, yes, a lawyer can get disbarred from a jurisdiction in which they were never licensed in the first place.  That is a thing.)   The second appears to be a purely UPL issue involving two brothers who have been running a Rhode Island firm for almost two decades without being licensed in Rhode Island.  Both of the situations though do reveal that enforcement of restrictions on UPL by lawyers is obviously not the highest priority of state bar regulators.

And, in part, that is as it should be.  The restrictions on UPL exist in order to protect the public from harm.  The now disbarred Maryland lawyer harmed the public quite a lot.  The brothers in Rhode Island ended up on the radar screen for discipline when a former client filed a complaint about a claimed blown statute of limitations.  There are likely quite a few lawyers across the country who have undertaken conduct involving cross-border practice that was arguably UPL but they provided good services to satisfied clients and no problem was ever surfaced or examined.

I think the idea that the legal profession would simply drop all opposition to the practice of law by those who are not licensed anywhere in the name of innovation is a nonstarter.  It also isn’t likely something that would be seen as advancing access to justice.  Though, as I’ve highlighted here in a number of posts, approaches such as the creation of Limited License Legal Technicians (“LLLTs”) does appear to have some momentum.   But, if we’ve reached the point that geographical restrictions on the practice of law by lawyers are causing harm to the public’s interest and that aspects of what is spoken of as the justice gap in the U.S. might be remedied by making it easier for under-served populations to secure legal services from lawyers licensed in another jurisdiction, then couldn’t that actually be an innovation worthy of real consideration?

And, for what it is worth, such an innovation might actually be better described as just more incremental change.  Many states (like Tennessee) already recognize this principle when natural disasters strike by having passed revisions of recent vintage to their rules to permit lawyers to travel to a state struck by disaster and provide legal services despite not being licensed in the state in need of the services.


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