THE EXISTENCE OF laws governing the practice of law by unlicensed individuals stems not from a desire of the legal profession to "protect its turf," but rather from a legislative recognition that the common practice of law by individuals or entities not licensed to practice law represents a serious threat to consumers.

When the New Hampshire Bar Association was permanently unified in 1972 by the Supreme Court, the Court noted that advances made by the Bar during a three-year trial period of unification in the areas of ethics, education, discipline and professional competence "cannot help but improve the quality of the legal service available to the people of the State, to the enhancement of the public good." In re Unified New Hampshire Bar, 112 NH 204, 206 (1972). In fact, Article I of the constitution of the New Hampshire Bar Association states the Association’s intent "to foster and maintain high standards of conduct, integrity, competence and public service on the part of those engaged in the practice of law."

The importance of the concepts of legal education, discipline, competence and public service was not lost on New Hampshire’s Legislature. RSA 311:7 provides: "No person shall be permitted commonly to practice as an attorney in court unless he has been admitted by the court..." In 1967, the Legislature strengthened this prohibition by adding a subsection to that statute authorizing the attorney general to maintain an action for injunctive relief against individuals engaged in the unauthorized practice of law. The statute further permits the Bar Association to seek such an injunction.

Critics of the legal profession suggest publicly that attempted enforcement of laws prohibiting the unauthorized practice of law represents an arcane effort by lawyers to maintain a monopoly in areas of practice where non-lawyers are less costly and just as competent as licensed attorneys. They suggest that non-lawyers are perfectly capable of performing certain "tasks" traditionally accomplished by attorneys, and as a result, their unlicensed legal representation of consumers should be validated. These critics then often attempt to obscure the issue by blaming the phenomenon of the unauthorized practice of law on the legal profession itself. This position is both incorrect and dangerous to consumers. Should a consumer of medical services entrust his or her surgical needs to an individual not trained and licensed to practice medicine? Should the owners of the new civic center in Manchester entrust the electrical wiring of a facility designed to hold 10,000 patrons to a non-licensed electrician? Should we entrust the education of our children to untrained and non-certified pseudo-teachers?

Attorneys in this state, after receiving a bachelor’s degree, are required to attend and graduate from an accredited three-year law school program. The degree attained is a Juris Doctorate (J.D.), which is every bit a doctorate degree as an M.D. Attorneys must then pass a two-day comprehensive bar exam, and a half-day ethics exam. They are then subjected to a review by the Supreme Court’s Committee on Character and Fitness, prior to admission to the bar.

Upon admission to the bar, attorneys must participate in at least 12 hours of continuing legal education annually to maintain a license, an expense that can range from $300 to $1,000 per year. Attorneys must pay $80 per year to fund the operation of the Professional Conduct Committee that investigates and recommends discipline for lawyers who commit ethical violations, such as failing to fulfill their responsibilities to clients or undertaking matters for which they were unqualified. Attorney assessments also support the Public Protection Fund established by a Supreme Court rule as a last-resort fund to compensate clients who are the victims of the actions of a few dishonest attorneys. Insurance carriers offer legal malpractice insurance to licensed attorneys to provide compensation to clients financially injured by their lawyer’s negligence.

Attorney trust accounts where client’s money is safeguarded are strictly regulated by the Supreme Court, with strict accounting methods and annual filings required and random audits conducted. In addition, the Bar Association offers a free mediation service for members of the public to resolve disputes with attorneys.

This regulatory structure – including its educational requirements, disciplinary and accounting compliance functions, and remediation or compensation mechanisms – combine to enhance the competence and accountability of attorneys in New Hampshire and, ultimately, provide greater protection to consumers of legal services.

To suggest that it is a good idea for unlicensed individuals or entities to commonly practice law represents a threat to the consumer. Rather than being an economical move, it may be a risky shortcut for a consumer to rely on someone to provide legal services who has avoided the commitment and expense associated with obtaining and maintaining a license to practice law.

To suggest that consumers should trust their legal affairs, which often encompass some of the most important financial matters of their lives, to untrained and unregulated individuals or entities is reckless at best, and potentially catastrophic. The statutes prohibiting the unauthorized practice of law, including RSA 311:7, are intended to guarantee that the public is provided with the consumer protections associated with the strict requirements imposed upon those who are licensed to practice law in this state.

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