Professor Michael McChrystal once pointed out that in the State of Wisconsin, the penalty for working as a beautician without a license is not much different from the penalty for practicing law without a license.
Someone who practices as a barber or cosmetologist without a license “shall be fined not less than $100 nor more than $5,000 or imprisoned for not less than 10 days nor more than 90 days or both.” Wis. Stat. § 454.16. Similarly, someone who practices law without a license “shall be fined not less than $50 nor more than $500 or imprisoned not more than one year in the county jail or both, and in addition may be punished as for a contempt.” Wis. Stat. § 757.30(1).
Granted, the penalties aren’t identical and we can scrutinize the differences. In any case, it seems a little unsettling to me that the penalty for giving a bad haircut (assuming it’s done without a license) is pretty close to the penalty for a non-lawyer giving bad legal advice. Let’s face it, hair will grow back, but the harm from getting legal advice from someone who isn’t properly trained can be devastating.
Humor me while I take this analogy a bit further: even if the unlicensed barber delivers the best haircut of your life (perhaps now is a good time to refer to my photograph, email me if you want my stylist’s number (he has a license, by the way)), he is still subject to sanctions under Section 454.16. However, the Wisconsin Supreme Court has suggested that correct legal advice given by a non-lawyer, at least in relatively simple situations, is protected speech under the First Amendment. See Hopper v. Madison, 79 Wis.2d 120, 134 (1977).
What’s more, Chapter 454 establishes a whole administrative board to deal with licensing and disciplining cosmetologists, while the unauthorized practice of law (UPL) lacks an effective enforcement mechanism.
The last several years have seen a lot of attempts by the State Bar and other advocates to find a way to effectively regulate UPL. Unfortunately, it has been a slow process. In the meantime, more and more people—usually among the most vulnerable—are falling victim to unlicensed practitioners.
In my practice area, I see a lot of the ugly fallout from those who get advice from notarios: non-lawyer notaries public who misuse their designation to present themselves as immigration experts. However, the problem goes far beyond the immigrant community.
There have been increasing problems with bankruptcy petition preparers. The bankruptcy code allows non-lawyers to help prepare petitions for debtors, subject to restrictions. 11 U.S.C. § 110. Often, however, the preparers do not do a good job of informing their clients of what the fee they collect, about $100-$200, covers—debtors enter bankruptcy court unaware that they need to pay a filing fee to the court. Worse, these debtors may have received poor advice from the preparer, or even thought the preparer was an attorney. The bankruptcy court can ban deadbeat preparers, but the barred preparers tend to continue their scheme under borrowed or phony names.
Problems also have been reported with online service providers that advertise online help with anything from estate planning to family law. These providers try to fit their users’ needs into one-size-fits-all forms—a practice that should make any decent lawyer cringe.
While the harms of UPL are serious, efforts to strengthen unauthorized practice mechanisms have been slow—you can get a sense of how things have developed by looking at the UPL policy committee page on the State Bar website here.
State Bar President James Brennan (full disclosure: Brennan is also the Executive Director of Catholic Charities of the Archdiocese of Milwaukee, my employer) wrote on the importance of combating UPL in September. (His article is available here.) He suggests that attorneys take pro bono cases for those who have been victimized by UPL. The idea is that by bringing successful civil cases against unauthorized practitioners, we build a body of case law that will discourage would-be unlicensed practitioners and make future suits easier (hopefully).
The pro bono component of the president’s suggestion is important—we aren’t usually talking about a lot of money, and to create the kind of impact litigation needed, there will be costly appeals. Still, it seems to be a pro bono investment with the potential for particularly high returns for the legal profession. First, it helps stop UPL, which is repugnant to the profession. Second, pro bono is always good for the profession—it looks good when attorneys work to bring justice for those who can’t afford a lawyer.
Perhaps the most appealing aspect of using civil remedies to discourage UPL is that it is something that can be done right now. As Brennan indicates, there is pending litigation against a notorious notario in the courts now. The money at stake in the case is small—it started in small claims court—but an outcome for the UPL victim would send a strong message.
Creating effective regulations and enforcement mechanisms is critical in the long-term fight against UPL. Civil litigation, however, gives us a way to fight the problem today.