A Model Definition of the Practice of Law: If Not Now, When? An Alternative Approach To Defining the Practice of Law

I. IntroductionAccess to legal guidance is extremely important in American society. All persons are subject to the law-the law creates individual rights and responsibilities affecting many aspects of social and personal life.1 The law protects and the law punishes-it is the main avenue through which justice and freedom are secured.2 Ignorance of the law is often no excuse-individuals are expected to know the law and to understand their legal rights and obligations.3Yet the law is also increasingly diverse and complex, and for many individuals it is extremely difficult to navigate through the legal web that surrounds their lives.4 The lawyer or attorney traditionally has fulfilled the role of gatekeeper and guide to the web of law.5 Yet many low- and middle-income Americans do not have access to an attorney because they lack adequate amounts of disposable income.6 Consequently, various reforms have sought to provide wider access to legal assistance. For example, legal aid programs hold the potential to address the needs of some lower income individuals, but many other individuals are still denied access to legal guidance.7 Therefore, many of these individuals attempt to ignore legal problems when they arise, or they may seek to redress these problems through the use of self-help.8 In a society where knowledge and access to the law is so important, the legal needs of many individuals remain unmet.9This problem is serious and requires a solution. Much of the reform debate attempting to address inadequate access to legal guidance in past years has focused primarily on restructuring the delivery of services in the legal services market.10 For example, the public's legal needs traditionally have been met by locally regulated and operating attorneys practicing alone or in small firms.11 Bans on multidisciplinary practice (MDP),12 multijurisdictional practice (MJP),13 and the unauthorized practice of law (UPL) supported this traditional provision of services.14 However, society and governing law have changed drastically since this tradition emerged. The traditional figure of the locally operating attorney is being replaced by large firms with multistate and multinational branches.15 Many of the services that lawyers traditionally provided are being encroached upon by nonlawyers and information technology.16 Traditional notions of MDP, MJP, and UPL likewise demand reassessment, and much scholarly debate has concerned the need to reconceptualize the legal services market.17 Underlying these debates is the notion that the delivery of legal services necessarily involves the regulation of the practice of law.18 The notion is that the practice of law-the delivery of certain legal services-requires state regulation to protect the public from incompetent providers. Yet there is no clear consensus on what is meant by the "practice of law."19 Some reformers recognize the need for a definition of the practice of law. Attempts to formulate a definition, however, largely have been met by failure.20 This Note contends that the legal community should formulate a model definition of the practice of law to address the many issues arising from restructuring the legal services market. Ultimately, a model definition is needed to help remedy problems with access to law and justice in modern American society. When the practice of law has been defined adequately, it will be easier to develop and determine better and more efficient ways of providing legal services to the public. Furthermore, lawyers, by taking the initiative and defining the practice of law, can improve the image of the legal profession in the eyes of the public.21 This Note posits that the definition of the practice of law, although often shrugged off as unnecessary or unachievable, actually plays a vital role in the legal services market. Furthermore, if the legal profession is unwilling to formulate a definition, the profession may find itself stripped of much of its current authority over the legal services market. …