ATTORNEY VAN OOT’S arguments in the Sept. 21, 2001 Bar News article on unauthorized practice will only perpetuate perceptions of the licensed bar as just another self-serving special interest group – one that protects an increasingly irrelevant, closed and anti-competitive system. Such a system is perceived as maintaining artificially high costs, preventing effective alternate delivery systems and limiting access to cost-efficient legal services for people of ordinary means.

Instead of providing leadership and innovation to increase access to lower-cost and effective legal services, it appears that the Bar will be dragged kicking and screaming into the future, preaching the same old shopworn slogans and insupportable justifications used throughout the history of professional licensure. Under the cloak of "consumer advocacy," the Bar’s arguments implicitly classify the consumers of legal services as idiots or incompetents, incapable of making informed judgments. Is it so hard for the Bar to be innovative, rather than obstructionist, in reevaluating the grossly over-inclusive definition of what constitutes "unauthorized practice of law," as promulgated in the Colonial case and apparently endorsed by attorney Van Oot?

Let’s get to the specifics. The first straw argument put forward is that the enjoined services clearly constituted the unauthorized practice of law. Can one seriously argue that the services cited were not within the competence of a title company or other trained persons? Lawyers themselves rely on such persons all the time. Persons of ordinary intelligence are quite capable of explaining and understanding mortgages, notes and closing statements, especially because standardized forms are now readily available for all. Few lawyers still perform their own registry research because they realize that title companies or other unlicensed experts do it better and cheaper. These people perform the original research and note the exceptions and discrepancies that the lawyer will incorporate if rendering an opinion. What intrinsic value is added to this process by the lawyer’s license? A competent, knowledgeable third party representative can certainly add value, but there is nothing about having a license that assures such competence or knowledge. You might as well argue that a CPA must be present at closing to do the math on the closing statement, since this is clearly not within the licensed competence of the closing attorney.

The court’s next straw is that, because Colonial was the lender’s representative and closing agent, the borrower "might incorrectly look to him [sic] for legal advice and explanation." The court does not explain this non sequitur or why this logic wouldn’t apply equally if the lender’s representative happened to be a licensed lawyer. In either event, a simple disclaimer would address the perceived risk.

Attorney Van Oot springs from the Colonial case to the general justification for licensure – that excluding unlicensed persons would protect the public "from being advised and represented in legal matters by incompetent and unreliable persons over whom the judicial department could exercise little control." Apparently there are only two groups of people in the world – the "incompetent and unreliable" and licensed professionals. But how does licensure assure knowledge or competency? How does the possession of a generalized license make one more competent to fill out a form than someone who has been doing it for years in the regular course of his or her employment? How many of us could say on the first day after passing the bar that we were now reliable and competent to render effective legal advice and assistance? Or that after 20 years of practice in international finance we could handle even the simplest probate hearing? Is it impossible for the Bar to imagine that there are people of intelligence, competence and integrity out there who couldn’t afford to take the sole mandatory route to law practice in New Hampshire: seven years of undergraduate and graduate education with a cost well into six figures?

As to the assertion that non-lawyers are not required to demonstrate minimum competency and moral character to represent others in a fiduciary capacity – well neither are licensed lawyers. All lawyers, regardless of competency or the state of their moral character, have received licenses because (1) they could afford the expense and time to attend and graduate from an accredited law school, (2) they passed an examination and (3) they attended a ceremony at the state Supreme Court and swore an oath. To state that clearing these particular hurdles is the exclusive path to morality or competency is ludicrous. If competency and good character are what the Bar wants, then it should wholeheartedly support and foster competitive private certification systems with full disclosure of ratings, results and performance. The other arguments put forth against non-lawyers practicing law are that they aren’t required to (1) be subject to "comprehensive regulation," (2) comply with rules of professional conduct or (3) maintain trust accounts, and (4) that their clients might not have recourse to the cold comfort of the Public Protection Fund. (The existence of which, in itself, undercuts the "license equals competence and integrity" argument.) None of these points depends on licensure to exist or be effective and unlicensed persons can certainly be subject to these requirements if it is the legislative will. We all are subject to regulatory schemes having nothing to do with licensure. Fiduciary duties likewise arise and are enforced outside of licensed professions all the time, as are bonding or insurance requirements and segregation of client monies. The jails are full of people (mostly unlicensed) over whom the judicial system has had no problem exercising authority.

To force potential consumers of legal services into an all-or-nothing approach where they either go it alone or have to make the leap to an expensive, select group of licensed professionals demeans those consumers and the potential providers of services, presuming both to be incompetent. There are many instances in which one would, indeed, be a fool not to hire a competent lawyer for a particular task. There are, however, many other situations where the possession of such a license is simply irrelevant to the task at hand or misleading as to the competency of its holder. There are numerous areas of practice currently within the rubric of "authorized practice" that could be opened up so consumers wouldn’t face the Hobson’s choice of representation only by a licensed attorney because of the lack of a cost-effective alternative.

We should take note that most of the cited cases (at least as reported) did not result from disgruntled clients, but from lawyers who presumably believe that they would otherwise be providing those services and earning the fees being usurped by the competition.

If the Bar really wishes to be seen as a defender and promoter of "increased and more affordable access to justice for all citizens," then it needs to be a lot more active and positive in promoting alternative approaches to providing those services. The attitude expressed by attorney Van Oot in her closing paragraph that, if I may paraphrase, says "if something is to be done, it’s the Legislature’s job, but in the meantime, let’s squash them" isn’t going to get us there.

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