States have traditionally relied on unauthorized practice of law statutes and court rules to restrict nonlawyers from providing legal services. A majority of courts assess compliance with these statutes by applying set practice of law definitions and restrictive court precedent to nonlawyer activity. These methods of enforcement have failed to balance consumer protection concerns with the public's need for access to affordable legal services. Most state practice of law definitions have proven inflexible, broadly barring the practice of law by nonlawyers, with few exceptions. Courts interpreting unauthorized practice statutes have created bright-line rules that favor consumer protection, failing to incorporate additional factors such as the reliability of the nonlawyer service. These approaches are ill-equipped to adapt to changing technologies, such as the development of interactive software and online programs that enable nonlawyers to provide document preparation services to specific consumers. States should incorporate a test that requires the assessment of four factors significant to legal access and consumer protection concerns into their unauthorized practice of law statutes or court rules. Such a test would assist courts in determining whether a particular nonlawyer service is beneficial to consumers, and would provide the flexibility necessary for states to adapt more readily to new technologies.
Cristina L. Underwood,
Balancing Consumer Interests in a Digital Age: A New Approach to Regulating the Unauthorized Practice of Law,
79 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol79/iss1/20