This Just In
Practicing law without a license is illegal in South Carolina. Who knew?
UPDATE: The decision in question is here. The article got some basic facts wrong. On the one hand, the agent apparently did not seek compensation for the illegally drafted will, as the NYT article suggested, but the SC did not consider this to be a mitigating factor. On the other, the illegal will was not the only UPL he committed. His other offense, drafting a general power of attorney for her to sign, was even more egregious.
UPDATE x2: The latter offense may not have been so egregious after all, if he had used the statutory uniform power of attorney at her direction. That form really does involve filling in a few blanks, and arguably would not constitute UPL, but she’d still have to be the one to select it in the first place.
January 29th, 2007 at 10:35 am
I don’t think printing a page for someone is exactly practicing law.
January 29th, 2007 at 10:41 am
[...] Xrlqy Wrlqy gets his snark on. Sorry, I just don’t buy that printing a page from software is the practice of law. Sounds to [...]
January 29th, 2007 at 10:56 am
You didn’t read the original article, did you? This wasn’t some nice guy trying to help an old lady who couldn’t type. It was a commercial transaction in which he selected the form of the will on his own, completed it based on his own judgments as to what it should say, and stood to gain 5% of the estate as a result.
January 29th, 2007 at 11:34 am
Stood to gain 5% from being personal representative, not from being her lawyer.
January 29th, 2007 at 11:37 am
Nothing in the article can attest to whether or not the woman did ask him to be her personal representative, and if he were trying to take her to the cleaners wouldn’t he have asked for more than 5%? Why is it the grand-neices who have sued and not relatives closer to the woman? Does she not have sons/daughters/grandchildren left, or did they feel the will was fair and only the grandneices feel cut out? Too many unknowns.
January 29th, 2007 at 12:00 pm
I read this article, (free) on c-net.
# Xrlq Says:
I don’t understand this comment. Your implying that because he got paid, then it’s not OK? Yet it would be perfectly fine of him to take the fee if he was a lawyer? And also, it would be perfectly fine of him to use the software if he was not paid at the end?
Setting aside any claims of swindling (because there’s not enough information) I’m really upset about this. It’s a blatant attempt by the lawyers guild to lock up services for themselves.
I don’t see this as any different from the “United Brotherhood and Sisterhood - gas station attendants local 449” passing laws to keep self-serve pumps out of New Jersey or the Doctors of Optometry lobbying to keep lesser trained sellers of eyeglasses from being able to use eye drops during exams.
Further on in the article I’ve linked to, there’s a little blurb about the lawyer’s guild going after a publisher called NoLo. I use and recommend their books because, frankly, legal advice has gotten far to expensive.
As an example of protectionism via law, you merely need to look at small claims courts in most states. The recoverable limits are so low, and usually you can’t recover even the value of your own time, let alone punitive damages. You could represent yourself in standard court, but there if you don’t know your ex post facto from your habeas corpus, you’ll likely have your suit dismissed with Prejudice faster than you can say pro se.
I’m 100% pro-capitalism, but this just sets up a legal no-man’s-land where those corporate-personhood thingys can rip off citizens for a few thousand dollars, and it’s wholly uneconomic for the citizen to sue. Sure you can go small claims, but, again, you can’t recover your time, and you can’t inflict a cash penalty to keep that corporate-personhood thingy from doing the same damn thing to your neighbor.
In fact, the only time the legal profession is interested in these types of low value suits is where they can aggregate them together into a class action suit. Example: Milli Vanilli class action suit, where the consumers got coupons for more crap from Arista, while the lawyers scored $675,000 in fees.
plenty more examples right here.
January 29th, 2007 at 12:57 pm
Anwyn, most of your unknowns are irrelevants. Who cares why the grandnieces were the ones bringing the suit, what their motives were, blah blah blah? None of that has anything to do with the basic question of whether this guy provided basic ministerial work for a ridiculously high price, or whether he performed legal services for a reasonable price, but without being licensed to do so.
As to why he didn’t ask for more than 5%, that’s because the amount, according to the article, is specified by SC law. Of course if he were really trying to screw her over he would have written himself into the will as a beneficiary, but that’s beside the point. No one’s accusing him of that.
Wills are tricky things. Even Supreme Court Justices have been known to screw them up. Do you really want to entrust this task to … cough … insurance agents?!
January 29th, 2007 at 1:20 pm
If there were more direct heirs than grand-neices who didn’t protest the will, that tends to show that there was not abuse in his handling of her affairs. If there aren’t, then it’s irrelevant.
I misspoke when I said “asked for.” Law entitles him to 5% as personal rep, not as lawyer, so if she asked him to be the personal rep, that’s aboveboard, unlike the vacating of the law by the trial court, which retained him as personal rep but forfeited his 5%. It is *not* beside the point that he did not write himself in as beneficiary. You said he “completed it based on his own judgment as to what it should say.” He says she told him what to say. The fact that he’s not a beneficiary other than the personal rep percentage is rather suggestive, if nothing else.
Wills are tricky things, but again unless I’m mistaken (common theme when I try to talk law on this blog) a lawyer is not required to draw one up. This ruling would tend to make it a crime if I ask my friend and personal rep (I have one, because I already have a will) to make me a new will that I can sign. Even the NYT says the law is vague. Not being a lawyer I’m not exactly qualified to give an opinion that anybody should listen to, but I hope the SC Supremes turn this over.
January 29th, 2007 at 1:43 pm
Shorter me: even the disgruntled couldn’t find enough evidence of abuse to contest the will other than on the grounds they brought, and in fact the will was not thrown out. How could he be acting as a lawyer if it’s not the law that a lawyer must draw up a will? and also, I misread the article: SC Supremes have already acted, that’s what we’re talking about. I read “SC Supreme Court rules” and concluded it was a future decision rather than reading the date. Anyway, SCSC says:
“if the July 31 will was in fact drafted pursuant to Ms. Weiss’s true wishes, it should not be invalidated simply because it was drafted by a non-lawyer.”
It seems to me the court is being mighty inconsistent in ruling that he acted as a lawyer and yet not throwing the will out and retaining him as personal rep. If he drew up a sound will, as a third party she asked to draw it up, what’s the problem, other than the disgruntled grand-neices?
January 29th, 2007 at 1:59 pm
Anwyn, I’m not sure why you think drafting a will is not considered practice of law, when the court just ruled precisely the opposite. South Carolina may be a bit stricter than some on the details, but I can’t imagine any state allowing non-lawyers to set up commercial will-drafting companies on the theory that drafting someone’s will isn’t practicing law. If you want to be the test case, go ahead.
I’m not sure I understand your references to the SC Supreme Court, at all. In one comment you said you hope they overturn the very decision they just got done rendering; don’t hold your breath. In the other you claim they acted inconsistently in not invalidating the woman’s will because it was drafted by a non-lawyer. Huh?
January 29th, 2007 at 2:06 pm
I said a lawyer wasn’t *required* by law. Is that not true? And if it wasn’t true, has the SCSC’s decision made it law?
Is it against the law for a person to be both the “personal representative” (that doesn’t have to be a lawyer, at least in Oregon) and the person who drafted the will according to the testatrix’s wishes? That’s not the same as a commercial will-drafting service.
I screwed the reference to the SCSC. I didn’t realize, when I wrote the first comment, that theirs was the decision under discussion. I thought it was the lower court. Fixed it in the second comment, and yes, I believe they are acting inconsistently and possibly turning it into precedent that the drafter of a will *must* be a lawyer. If that had been the law previously this case would not exist.
January 29th, 2007 at 2:07 pm
Er, rather, if that had been the case previously–that a lawyer is required to draft a will–then we wouldn’t be having this discussion, the guy would’ve broken the law no question.
January 29th, 2007 at 2:36 pm
I am not sure what you mean by a lawyer being “required” to draft a will. It’s no different than representing oneself in court. Anyone can draft his own will without involving a lawyer. It’s a stupid thing to do, but it is legal. When you start drafting wills for other people, though, that’s where you cross the line into UPL.
All this has zero, zip, nada to do with the validity of the will itself. There is no inconsistency in recognizing the will as valid (because it adheres to all the legal requirements relating to the validity and enforcement of wills) while also recognizing that an insurance agent committed a crime in drafting it. Indeed, it would have been an outrage for the court to have done anything else. Why should an innocent decedent and her devises be punished for someone else’s misconduct?
January 29th, 2007 at 7:40 pm
“When you start drafting wills for other people, though, that’s where you cross the line into UPL.”
Point taken. Is that true even if it’s without compensation? It seems to me that the two issues that make this case murkier than it otherwise would have been are the five percent and the Quicken software.
I still fail to see how it’s consistent for the court to assume that the will represents the woman’s wishes and let it stand while simultaneously proclaiming that the man acted as “more than a scrivener.” If it represents her wishes, then he just wrote them down, even if he did use software.
Bleah.
January 29th, 2007 at 10:58 pm
UPL is UPL. There is no “sure I broke the law, but no one paid me to do it” defense. In footnote 5 to the decision, the SCSC cited one case from Connecticut that argued that UPL for “free” is actually more dangerous than when there’s a charge:
I’m still unclear as to why you think there’s any contradiction between the court’s ruling that the will represented Ms. Weiss’s wishes and its holding that Mr. Chavis acted as more than a scrivener. Scriveners write what you say verbatim, they don’t draft legal documents to implement your general objectives. That’s what estate lawyers do. Whether a legal document does or does not implement the party’s wishes goes to the question of how well the legal services were performed, not whether any were performed at all.
January 29th, 2007 at 11:18 pm
He didn’t “draft” it, he used predrafted forms.
But other than that quibble, I concede.
January 29th, 2007 at 11:22 pm
That quibble would be important if all he had done is fill in the blanks, rather than also selecting the form. Without having the forms in front of me, the odds are he made quite a few significant legal decisions for her by that act alone.
January 29th, 2007 at 11:43 pm
I humbly submit in my utter irrelevancy to your omniscient, illuminating pertainedness. Kindly allow me to bask in the rays of your law-elucidating cogitations, O Worthiest of Blawgers.
January 29th, 2007 at 11:53 pm
There’s more to being a lawyer than knowing the law. I turned down a will re-writing case today and referred the client to another attorney for two reasons:
1. Because he is a probate lawyer (which I am not) and, to the extent that any lawyer is guaranteed to do a good job, he will do a better job than I can;
2. The “client” who called me is a friend and a neighbor who will be the new executor, at no fee BTW, and I felt that there was a conflict — whose interests would I be looking out for, my friend’s or the testator’s?
Being a lawyer is not a job, it’s a status. We are given a monopoly on the practice of law but are held to strict rules whose violation could be the loss of our means of livelihood. We also take a certain pride in adhering to the highest standard of professionalism, competence and care which is imposed on us.
Perhaps this will help a non-lawyer understand. You use your car to drive your child to school every day. What kind of mechanic will you take it to for a brake-job?
January 30th, 2007 at 8:06 am
Being a lawyer is not a job, it’s a status. We are given a monopoly on the practice of law but are held to strict rules whose violation could be the loss of our means of livelihood.
In otherwords, a guild or a cartel.
January 30th, 2007 at 11:24 am
Jody,
No, because we do not have a duty of loyalty to the success, protection and perpetuation of our group. We have a duty of loyalty to our clients and to serve their interests, as well as to the administration of justice. If you would like to check out disciplinary actions in a jurisdiction that’s in the news a lot lately, you will see that the harshest punishments are for lawyers who messed-up their clients.
January 30th, 2007 at 12:27 pm
There are cartel elements to the rules. For years, many states prohibited nonresidents from even sitting for the bar, a rule that can hardly be said to “protect” the public from anything except increased competition. Even now, most states’ admission rules for out of state attorney reflect a protectionist mentality. Arizona thinks California attorneys, who passed a grueling, three-day exam covering almost identical subject matter with a much lower pass rate, aren’t good enough to practice law in Arizona without taking another exam. California thinks Arizona attorneys who passed a two-day exam covering exactly the same material aren’t good enough to practice law in California, even if they scored high enough for the differing pass rates not to be a factor. One of these states must be wrong, and in fact, both are. If all they cared about was protecting the public, admission without exam would be the rule rather than the exception. Even where one state has testing requirements that are significantly lower than the other, it should still be possible to set a minimum score on the high-passage state exam that would translate into passing in the low-pass state (e.g., not everyone who passes the D.C. Bar Non-Exam would be admitted in New York, but anyone who scored at or above the 60th percentile would).
As applied to in-state non-lawyers, there are a number of services that could and should be offered by non-lawyers. I’m not sure will drafting is among them, but could envision a limited license for will draftersw, which required the drafter to show basic knowledge of the Probate Code, without having to learn con law, contract law, civil procedure, or any of the other law school stuff except property (which is the hardest to master, and the easiest to screw up).
January 30th, 2007 at 8:00 pm
Federalism? ^_^.
January 31st, 2007 at 9:55 pm
nk: Many guild members also profess that they are just looking out for the interests of their clients.
I’ll make the guild analogy clearer: Law school/associate = apprentice. Partner = master craftsman. Guilds were given exclusive rights by the state (or more frequently city) to manufacture a certain product, such as furniture or wool. Lawyers are given exclusive rights by the state to practice law. Training and standards of execution with accompanying penalties for failing to produce products up to specified standards are all part and parcel of a guild.
Even wikipedia cites state bar associations as an example of a guild.
As to if lawyers have no loyalty to their own group (No, because we do not have a duty of loyalty to the success, protection and perpetuation of our group.), why is it against the law to practice law without a license? If only the interests of the client were an issue, then only legal malpractice would be against the law.
Side note: I have similar (negative) feelings about the organization of most national unions, realtors, and doctors (the MD kind, not the PhD kind) and probably would about actors and screen writers if I had more interactions with them.
February 1st, 2007 at 2:38 am
Jody, as I’ve noted in prior comments there is a protectionist guild-esque element to most states’ licensing requirements, particularly as to out of state lawyers, but your suggestion that public protection would entail no licensing law whatsoever doesn’t fly. It’s all well and good to ban malpractice, but no one sets out to do that, and not everyone can pay the damages if they do. The public is best served not only by “banning” (allowing aggrieved clients to sue for) malpractice, but also by taking reasonable steps to prevent it from occurring in the first place. Requiring attorneys to demonstrate basic competence in the law prior to practicing law strikes me as a reasonable step in that direction.
February 1st, 2007 at 9:16 am
Admittedly, we’re going off on a tangent (but that’s what blogs are for, no?) and my issues is really with nk claiming the bar is not a guild, which you aren’t denying, but there’s this soap box here and…
Requiring attorneys to demonstrate basic competence in the law prior to practicing law strikes me as a reasonable step in that direction.
The same justification is used by doctors for medicine, realtors for real estate and trade unions for their trades. That’s always a guild’s stated reason for the protection from competition - x,y, and z, while anticompetitive are necessary to protect the interests of the public.
As a matter of preference and a member of the public I disagree with the organization of trade unions, bars, and medical licensing because I think the stifling of competition outweighs any benefit (although I recognize the benefit to the members of the guild). I would prefer that caveat emptor (with mechanisms for recovering damages for malpractice) be the law of the land.
Side note 1: I, at least, do not perceive exclusion from the practice of law as based solely on reasonable competence. Consider the following constraints on practicing law in Virginia which do not seem to be a function of reasonable competence.
a) You can’t take the bar exam unless you’ve been to an accredited law school. This is sorta like getting a realtor’s license, you can’t just show up for the test and demonstrate subject matter mastery.
b) You can’t practice law after you retire (though pro bono work is ok!)
c) Associate members can’t practice law(associate members include law faculty who presumably know the law, though there is the argument that those who can’t do, teach…)
d) Lawyers wouldn’t be forbidden from aiding a non-lawyer in the rendering of legal advice.
Side note 2: Maybe there should be a “big boy” license which permits members of the public to waive the “privilege” of being protected by guilds when they freely enter into contracts. Or maybe a better set up would be that someone can practice law (or realty or whatnot) without a license as long as each client signs a document affirming the fact that they are aware that the practitioner is not licensed.
February 1st, 2007 at 10:23 am
February 1st, 2007 at 10:38 am
Jody,
I suppose it’s a question of where the emphasis is placed — on protecting the monopoly or protecting the clients?
Illinois may be unique, and it may have given me a rose-colored view, but licensing and discipline is by the Supreme Court through its administrative arms. There is no requirement for anyone to belong to a bar association and they have no authority in the licensing or discipline of attorneys.
In a case of first impression, an attorney received a two-year suspension for not reporting misconduct by another atorney. Fairly recently, a Supreme Court opinion imposed the same obligation on trial judges to report misconduct in pending cases. I know of one attorney who was reinstated after serving a twenty-year sentence for murder. I know of no case where an attorney was reinstated after converting client funds when he had not made full restitution.
True, if you want to take the bar exam right after law school, Illinois requires that you have gone to an accredited school. But we have reciprocal licensing (without looking it up) for attorneys from other jurisdictions who have practiced for three years (?), pro hac vice, and the rules may have changed but I studied for the bar exam along with a California attorney who had gone to an unaccredited school.
What more can I say?
[Oh, I dunno. How about this: why would anyone smart enough to pass a bar exam want to live in Illinois? -X]
February 1st, 2007 at 11:34 am
Actually, nk and xrlq, I should point out that I have the impression that lawyers do a much better job of policing their own than other groups. Not that I have any hard data to back that up say viz a viz disbarment and revoking other licenses - it’s just an impression.
Explaining the associate thing - 1) I’m listing it as an example of an anti-competitive practice not based on competence and 2) it’s just a little funny to an outside observer that a law professor if asked for legal advice could not render it unless they have requested (and paid for) active status. Now that’s not a particularly high barrier to entry, but it is nonetheless a barrier to entry.
Example: Suppose Ernest Chavis had been a professor of estate law and not an insurance agent, and suppose Ernest had no interest in practicing law because he hated the process of attracting clients (for whatever reason). Upshot, Ernest the professor doesn’t maintain active status and is instead has associate status. Now suppose Annie Weiss asked him to draft a will as a favor and he agrees. Ernest the law prof would be just as guilty of rendering unlicensed legal services as Ernest the insurance agent. Thus the illegality in such a scenario is not one of competence.
Now, I recognize that the legal way for Ernest the professor to handle this is for Ernest to say, “Sorry, I am not currently licensed to practice law in the state of VA, but if you go see x,y,or z who specialize in estate law, they can help you out.” But right there, he had to refuse business even though he was competent to handle her problem.
More broadly, I place practicing law without a license into the broad category of victimless crimes - all crimes which I think shouldn’t be illegal. Not because the illegality of those activities is unConstitutional; rather such an arrangement is just not my personal preference. (Example: I think Lawerence v Texas was wrongly decided, but would’ve preferred Texas have not passed the law to begin with as consensual sodomy is a victimless crime. So put me in the Thomas camp on that one.)
February 1st, 2007 at 1:07 pm
If Ernest the Professor had been an associate member of the bar, he would have had another option: change his status to active. In any event, I don’t think Ernest the Professor is analogous to Ernest the Insurance Agent. Both are unlicensed, of course, as is Ernie the Attorney (who, AFAIK is licensed in Louisiana but not South Carolina). Yes, from a licensing perspective it would be UPL either way, but one violation is a technicality while the other goes to the basic reason why we license lawyers at all. [And don't lay the "guild trip" on me about the reason - the relevant "we" is society in general, not lawyers in particular. If the majority of the population wanted the right to hire unlicensed lawyers more than it wants the protection of NOT being represented by incompetents, your preference would be the law, and there wouldn't be a f'ing thing we self-serving lawyers could do about it.]
Another fringe benefit of requiring a law license is that most lawyers know enough about other areas of law to know our limits. Any lawyer may legally draft you a will or “living” trust, but if you ask your lawyer friends to do it, I suspect that most would be reluctant to do so. Only those who know almost no law at all take the “how hard can it be, anyway?” attitude Ernest the Non-Law-Professor appears to have taken.
February 1st, 2007 at 1:37 pm
“guild trip”… heh…
I think we largely agree on the situation, but have divergent preferences. And as you correctly note, my preference is in the minority.
February 1st, 2007 at 1:54 pm
[Oh, I dunno. How about this: why would anyone smart enough to pass a bar exam want to live in Illinois? -X]
It is definitely wearing thin. I have been trying to talk my wife into moving just about anywhere else. I think Arizona would be her first choice, but I would be happy with Tennesee. We live in Riverside, a “nice village in a forest”, over $5,000.00 of our real estate taxes go to the school district, and we still have registered our daughter in a private school for kindergarten. This may be the straw that breaks my wife’s inertia.
BTW: I agree that reciprocity is protectionistic. Whether California recognizes Illinois law licenses has no rational relationship to whether a California attorney is as competent and ethical in Illinois as he is in California.
February 1st, 2007 at 3:43 pm
You know what I think ought to be sanctionable? Lawyers coming from odd duck jurisdictions like California and, because they work for corporations rather than a law firm, they can automatically practice law in Virginia. Meanwhile practitioners either have to pass the bar or go through an onerous waive in process. I think all of the non-contiguous state lawyers who come to Virginia from states that have things like “provisional” rulings, to practice for corporations should have to pass the bar on pain of sanction.
On this there can be no debate.