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http://www.google.com/search?hl=en&safe=off&q=nolo+press+pra cticing+law+without+a+license+book
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http://www.zdnet.com/zdnn/stories/news/0,4586,301842,00.html
Legal software unlawful?
By Margaret Kane
ZDNet News
March 27, 1998 8:43 AM PT
A California book and software publisher is being
investigated by the state of Texas for allegedly
practicing law without a license.
Nolo Press, based in Berkeley, Calif., is being investigated under a Texas statute that prohibits the practice of law by anyone not licensed by the state.
Nolo publishes legal self-help guides, as well as software, including a Living Trust Maker, specifically mentioned in a letter from the Texas Supreme Court's unauthorized practice of law committee.
In the letter, posted on Nolo's Web site, the committee states that "Your activities, the representations made, the form of the presentations and other aspects of these programs may constitute the unauthorized practice of law."
Nolo: Texas letter
"ludicrous"
Texas' definition of the
practice of law includes
"preparing a will, contract,
or other instrument, the
legal effect of which under
the facts and conclusions
involved must be carefully
determined."
In a press release, Nolo
co-founder Ralph Warner
said the investigation "is the
first step toward
widespread state censorship.
"In a nation founded on the idea that citizens have a right to directly participate in all three branches of government, it seems ludicrous for Texas to consider restricting access to the very tools that allow this to happen," he said in the statement.
Most states have laws governing professional conduct, and discussing who is entitled to practice law in the state. According to Nolo's Web site, every state except Arizona prohibits the unauthorized practice of law.
A hearing on the matter is scheduled for August.
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http://www.time.com/time/magazine/1998/dom/980803/business.a _legal_press_i12.html
BUSINESS
AUGUST 3,
1998 VOL. 152 NO. 5
A Legal Press In Texas
A state court targets self-help publisher Nolo Press for making it too easy to bypass lawyers
By JOHN GREENWALD
an a book or a software program impersonate a lawyer? You might not think so, but a panel supervised by the Texas supreme court is hauling in the most prominent U.S. publisher of self-help legal aids to determine if its products are doing just that. The possible culprit, Nolo Press, is a cheeky Berkeley, Calif., publisher whose logo depicts lawyers as briefcase-toting sharks with neckties. But Nolo's real crime may be putting the law into the hands of laypeople for $15 to $45 a pop.
That's what has Texas steamed. A closed-door panel will hold hearings next month on whether Nolo, whose 150 titles cover topics from writing wills to applying for patents, has been practicing law without a license.
The company (projected 1998 revenues: $9.5 million) has sold 7 million books and software packages since 1971. "Every public library in America, almost without exception, stocks our books," says co-founder Ralph Warner. So do institutions like the University of Michigan, where law-library director Margaret Leary says of Nolo publications, "We consider them the best books about law for laypeople."
Critics view the Texas action as a naked attempt to shield the state's lawyers--who charge as much as $400 an hour for such fill-in-the-blanks legal services as drawing up standard wills or simple divorce papers--from off-the-shelf competition. "These are cookie-cutter tasks," says Steven Gillers, a New York University law professor who specializes in legal ethics. "When you realize how routinized legal work is, and how much information you can pack into an interactive CD-ROM, then you recognize how easy it is to substitute a computer for a lawyer. That's the threat."
The growing popularity of do-it-yourself legal aid certainly seems to have caught the eyes of Texas. The court panel, which enforces a statute against the unauthorized practice of law, initially won a 1992 ban against a manual that contained forms and instructions for creating a will. More recently, the committee sued Parsons Technology, an Iowa company that markets Quicken Family Lawyer software. The case is pending. And in a letter to Nolo last year, the panel expressed concern about the company's Living Trust Maker--2.0 software, which has sold 175,000 copies nationally. Panel chairman Mark Ticer, whose group mostly prosecutes individuals, sees the proceedings as upholding the law, not lawyers. "Ninety-nine percent of the people we deal with should be in jail," he asserts.
Consumer advocates are worried that if Texas prevails, suits in other states will follow. "The truth is that millions of Americans are priced out of the legal system," says attorney James Turner, executive director of HALT (Help Abolish Legal Tyranny), a consumer group that works for the reform of legal practices. "Texas is endangering the rights of its citizens to get accurate, timely information that can help them handle their own legal problems."
In Berkeley, Warner says he has few doubts about winning this battle: "I have confidence in the First Amendment." Indeed, several previous cases support him. Yet, in the ultimate irony, none of Nolo's books will be of much help to the company at the hearing: Texas law requires that it be represented by an attorney.
--By John Greenwald. Reported by Hilary Hylton/Austin and Andrea Sachs/New York
--By John Greenwald. Reported by Hilary Hylton /Austin and Andrea Sachs /New York
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http://www.ncpa.org/pd/law/oct98c.html
Cato Study:
Unauthorized
Practice Of
Law
Prior to the 1920s, many lawyers attended law school for only a year or two, and the majority did not go to law school at all. They learned law as apprentices in law offices. But then the American Bar Association embarked on a crusade to restrict the practice of law to those who had received their degrees at a law school and been accredited at the bar.
The result is that in every state except Arizona, there is a legal prohibition against practicing law without a license from the government.
Since Arizona rescinded its "unauthorized practice of the law" statute in 1986, consumers can take their problems to lawyers or clinics staffed by paralegals.
Arizona's paralegals specialize in routine work they understand well and perform for fees most people can afford.
Advocates of freer legal markets point out that much of what lawyers learn at school or pick up cramming for the bar exam is forgotten once they actually settle into a particular area of practice -- leaving clients to pay for training which is never used.
Lawyer groups also take a dim view of legal self-help books, even though they are factually correct.
The New York Bar Association sued to prevent the sale of Norman Dacey's book, "How to Avoid Probate" when it appeared more than 30 years ago. The lawyers lost.
More recently, the state bar of Texas is taking Nolo Press, a publisher of self-help law books, before the Texas Supreme Court in a suit scheduled to be heard October 21. The lawyers contend the sale of Nolo's books and computer programs violate the state's unauthorized practice statute.
Observers say the lawyers are probably in for a tough lesson on First Amendment rights.
Source: George C. Leef (Cato Institute), "Legal Profession Defends Its Turf," Washington Times, October 16, 1998.
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http://www.cato.org/dailys/10-13-98.html
October 13, 1998
The Legal Profession Defends Its Turf
by George C. Leef
George C. Leef is president of Patrick Henry Associates and author of the just-published Cato Institute Policy Analysis "The Case for a Free Market in Legal Services".
Chances are that you've seen Norman Dacey's book, How to Avoid Probate! which has been helping Americans steer away from the shoals of probate for more than 30 years, without the expense of an attorney. Today, you will find this book and many other self-help legal books available in stores. But did you know that if the legal profession had had its way, Dacey's book would have been kept off the market?
The New York Bar Association sued to prevent sale of the book on the ground that it constituted "unauthorized practice of law." Fortunately, the New York Court of Appeals ruled in favor of Dacey and the freedom to publish. But the allure of using government power to stifle competition never goes away.
Currently, the state bar of Texas is waging war against Nolo Press, a publisher of self-help law books. A state bar committee has been "investigating" to determine whether the sale of Nolo's books and computer programs violates the Texas unauthorized practice statute. A hearing before the Texas Supreme Court is scheduled for October 21.
The case ought to be a slam-dunk win for Nolo Press. The First Amendment is an awfully clear statement that government must not interfere with freedom of the press. Even if one or more of Nolo's books were inaccurate or deficient -- and there is no evidence of it -- there are better ways of dealing with that than to open the Pandora's box of allowing the government to decide what books may be sold.
The best means of delivering affordable legal services to the public with minimal risk of harm is through a competitive marketplace, backed up with remedies for fraud and incompetence.
Nolo's travails ought to lead us to think not only about the First Amendment, however, but also about the very concept of "unauthorized practice of law" (UPL) itself. In every state except Arizona, there is a legal prohibition against practicing law without a license from the government. When bar organizations bring UPL cases, they almost always say that the laws are necessary to protect the public against dishonesty and incompetence. That's a weak argument.
To get a lawyer's license, you must pass the bar exam, and you're not allowed to take that exam unless you have graduated from law school. In many states, only an "approved" law school will do. The underlying assumption is that only those who have gone through this wonderful course of training can be relied upon to render good legal assistance to others. But that assumption doesn't stand up.
Many judges, law professors, and lawyers candidly admit that the prescribed route into the legal profession is neither necessary nor sufficient to ensure legal competence. Much of what is learned during three years of law school and crammed in for the bar exam is forgotten once a lawyer actually settles into an area of practice. That's when the real learning begins.
The problem is, not that the law school and bar exam gauntlet is bad preparation, but that the legal profession has made it the only preparation allowed. The cost of going through that gauntlet is very high, but, as many disinterested observers have pointed out, it does surprisingly little to get the would-be practitioner ready to practice law. The result is general overinvestment in legal education that drives up the cost of legal services.
Before the American Bar Association began its crusade for "high standards" in the 1920s, many capable lawyers attended law school for only a year or two, not the now-mandatory three, and the majority of lawyers did not attend law school at all. They learned law as apprentices in law offices. When lawyers had the freedom to choose the training they thought best, few decided that three years in school was worth the cost.
The best means of delivering affordable legal services to the public with minimal risk of harm is through a competitive marketplace, backed up with remedies for fraud and incompetence. Professionals want to succeed and will find the kind of training they need to do competent work for their clients. Fear of failure and financial loss is a stronger deterrent to incompetent work than any licensing scheme.
Arizona has had no UPL statute since 1986. Consumers can take their problems to lawyers or to clinics staffed by paralegals. The latter specialize in routine work they know well and perform for fees most people can afford. Consumers don't have to pay for more legal training than they need.
Competition works as well in legal services as in other markets. But we'll have to get rid of the UPL statutes to enjoy the benefits.
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http://www.mises.org/freemarket_detail.asp?control=51
The Free Market
November 1998
Volume 16, Number 11
The Lawyer Cartel by George C. Leef
In the nineteenth century, the legal profession was open. There were no mandates on the kind or duration of education a person had to have. No law restricted anyone from offering his services. The only complaints were from lawyers who wanted to force "higher standards" upon the market.
Today, the law profession is closed off to all but those who can afford the largely useless steps of obtaining a license, all thanks to the lobbying of bar associations. You cannot "practice law"--an extremely vague concept--unless you possess a license from the state. You cannot obtain a license without going through a very costly gauntlet of law school and the bar exam. In every state but Arizona, an "unauthorized practice of law" (UPL) prohibition (usually a statute, but in some states a judicial rule) protects the legal cartel from competition.
By artificially raising the cost of entry into the market, there are fewer competitors. Those remaining in the market can charge more. The American Bar Association has commissioned studies that conclude that a large number of Americans are priced out of the market for legal services. But instead of advocating a free market, it lobbies for more money for subsidized legal help for the poor. In 1987, the Chairman of the Legal Services Corporation, W. Clark Durant, actually gave a speech to the ABA in which he called for the abolition of his agency and all barriers to competition in the market. The next day, the president of the ABA called for Durant's resignation.
State and local bar associations are vigilant in ferreting out unauthorized lawyers. Robin Smith, of Portland, Oregon, provides a good case study. She had worked as a paralegal in a large law office for several years, but was disgusted by the fact that lawyers billed clients high fees for what was entirely her work, fees that many of them could scarcely afford. So she began a business of her own, People's Paralegal, Inc. For several years, her business grew steadily, offering lower cost services that were widely demanded, such as will drafting and divorce paperwork. She knew that she had to be good enough to pass the test of the market, that is, to do good work that would satisfy customers. She was.
But success is perilous. The Oregon State Bar filed suit against Smith for violating the state's UPL statute and the case was a slam dunk for the legal cartel. Not only was People's Paralegal enjoined from ever violating the law again, but Smith was ordered to pay the State Bar for its expenses in litigating her out of business. Oregonians lost a lower-cost alternative source of legal assistance. Robin Smith and her employees lost the freedom to contract with people who wanted her services.
Not only do bar associations go after the upstart individuals with the temerity to compete for legal business. They also go after people who publish books providing information to those who wish to handle their own legal problems. Thirty years ago, the New York Bar agitated against Norman Dacey's How To Avoid Probate! but the New York Court of Appeals refused to go along with the bar's effort to suppress the book.
In Texas, the State Bar has undertaken an "investigation" of Nolo Press of Berkeley, California, a publisher of self-help legal books. The Bar's UPL Committee told Nolo that it must appear and answer the charge that, by selling books and software that enable individuals to do their own legal work, the company is guilty of "practicing law" without a license. Texas precedents are on the Bar's side.
Licensing is neither necessary nor sufficient to ensure competence. Plenty of incompetent lawyers get through law school and pass the bar. What drives professionals, licensed or not, is the powerful market incentive to do good work and satisfy clients.
Marylander Paul Kurtz, for instance, was not a member of the bar and hadn't attended law school. But he represented as many as 100 clients in legal matters, including court proceedings. Many judges had assumed that he was a "real" attorney because his representation was so thoroughly professional. The New York Times quoted one lawyer as saying that Kurtz had "performed admirably in presenting a legal brief and arguments at a sentencing hearing."
Kurtz managed to learn enough about an aspect of the law--which is all that any lawyer can say these days --without going through the bar's prescribed gauntlet of law school and the bar exam. Kurtz is now under arrest, charged with violations of the Maryland unauthorized practice of law statute. As lawyers like to say, res ipsa loquitor: the thing speaks for itself.
In Arizona, unlicensed paralegals capably assist people with the kinds of legal needs they know they are competent to handle. For more difficult or unfamiliar work they recommend lawyers. The market functions smoothly and saves many consumers substantial amounts of money.
If lawyers want to do something to enhance their image and reduce the number of vicious lawyer jokes, they should start by demolishing the exclusionary walls they have built around the market for legal services.
* * * * *
George C. Leef, a graduate of Duke University Law School, is a scholar with the Mackinac Center for Public Policy.
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