STATE BAR OF TEXAS TASK FORCE RECOMMENDATION OF A NEW STATUTORY DEFINITION FOR THE UNAUTHORIZED PRACTICE OF LAW

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1 STATE BAR OF TEXAS TASK FORCE RECOMMENDATION OF A NEW STATUTORY DEFINITION FOR THE UNAUTHORIZED PRACTICE OF LAW April 2001

2 Table of Contents The Task Force and Its Objective...2 The Rationale for Regulation...3 Current Regulation in Texas Definition State Bar Membership Required Prohibited Acts Falsely Holding Oneself Out as a Lawyer Unauthorized Practice of Law...7 Evaluating the Need to Revise Texas s Statutes...7 The Structure of the Proposed Statutory Revision...8 Section Defining the Practice of Law Definitions...10 A. The practice of law...10 B. Legal representation...10 C. Legal advice...12 D. In a professional capacity...14 E. Individual F. Person...16 G. Attorney or lawyer...16 H. The definition of the practice of law...17 Section Who Can Practice Law and Under What Circumstances Qualifications for the Practice of Law...17 Sections and Enhanced Enforcement Attorney General as Special Counsel Recovery...27 Epilogue...29 Appendix A...31 Text of Proposed Statutory Language Definitions...31 Section Who Can Practice Law and Under What Circumstances i-

3 Qualifications for the Practice of Law Attorney General as Special Counsel Recovery...35 Appendix B...36 Changes from Preliminary Report...36 Section Former Section (11)...37 Originally-proposed Section B ii-

4 STATE BAR OF TEXAS TASK FORCE RECOMMENDATION OF A NEW STATUTORY DEFINITION FOR THE UNAUTHORIZED PRACTICE OF LAW April 2001 Presidents Peña, Aycock, and Liberato, at the request of the Supreme Court, have appointed this task force to evaluate the State s regulation of the unauthorized practice of law. For the past two years, the task force has been in the process of performing a wide-ranging study on that topic. In October 1999, the task force issued a preliminary report concerning the ABA Commission s proposal to allow nonlawyers to participate as owners in entities (multidisciplinary practice groups or MDPs ) in which lawyers practice law. 1 In May of 2000, the task force put out for public comment a preliminary report on a different subject what persons other than lawyers licensed by the Texas Supreme Court should be allowed to perform services in Texas which constitute the practice of law. 2 Numerous comments on that preliminary report have now been received from members of the State 1 See State Bar of Texas Task Force, Preliminary Report on the ABA Commission s Multidisciplinary Practice Proposal (October 1999), reprinted in 63 TEX. B. J. ff. 150 (Feb. 2000). 2 See State Bar of Texas Task Force, Preliminary Recommendation of a New Statutory Definition for the Practice of Law (May 2000), reprinted in 63 TEX. B. J. 543 (June 2000). -1-

5 Bar and from the public. 3 The Task Force, having carefully reviewed the received comments, now issues this report to recommend new statutory language to regulate the unauthorized practice of law (hereinafter sometimes referred to as UPL ) in the State of Texas. 4 The Task Force and Its Objective One of the goals in the selection of the Task Force has been to obtain a cross-section of perspective from the State Bar s membership. The Task Force is comprised of sixteen members. Two are solo practitioners, four are from firms of less than twenty lawyers, five are from firms of more than twenty lawyers, and five are in public interest, corporate, or governmental positions. More than half of the members have office practices and the rest are litigators. The Task Force also includes the chair of the Supreme Court s Board of Law Examiners, the chair of the State Bar board of directors, the General Counsel of the Texas State Board of Public Accountancy, four persons who have chaired the Supreme Court s Unauthorized Practice of Law Committee, as well as on an ex officio, nonvoting basis the State Bar s Executive Director and current President and President-elect. Implicit in the request of the Supreme Court for the appointment of the Task Force was an expectation that the Task Force members would approach their work from the standpoint of the public interest, and not from the standpoint of economic self-interest. The Task Force has accepted that charge. For that reason, this report is not intended to express the political will of either the 3 4 The written comments are available as an appendix from the State Bar of Texas (attn: Sharon Ley), P. O. Box 12487, Austin, Texas This report is being disseminated in print and on the State Bar s website to members of the State Bar and other interested persons. The Task Force recognizes the difficulty of this project and invites continuing comments on its proposal. Comments may be submitted to the UPL Task Force, State Bar of Texas, P.O. Box 12487, Capitol Station, Austin, Texas

6 members or leadership of the State Bar; it is only the opinion of the sixteen individuals who have spent two years examining and weighing the many legal and policy issues inherent in the regulation of the unauthorized practice of law. During the course of its existence, the Task Force has come to understand all too well that public and lawyer opinion on UPL issues is riven by deep-felt divisions, and that these differences make impossible in the short term the forging of a consensus, even among lawyers, as to how, or even whether, the regulation of the unauthorized practice of law should be changed. These divisions of opinion are made even more problematic by the rapid changes now resulting from the computerization and internationalization of American life and business, which changes will necessarily occur as well in American legal practice. The goal of the Task Force is to illuminate where the legal profession is heading and should head, and trust to the rapid pace of change the reconciliation of lawyers, judges, and the public s views on how the unauthorized practice of law should be regulated. The Rationale for Regulation There is a consensus that the public receives a higher quality of legal service to the extent practitioners are educated, trained and honest. Prohibiting the practice of law by unqualified persons is designed to protect the public from those who lack the ability and integrity needed to represent clients in legal matters. While some issues within the definition of the practice of law may be capable of resolution by those without formal legal training, many are not. Some situations are simple and may be handled easily with forms, while other situations may involve highly complex and individualized legal concepts. In some instances, only a highly capable practitioner can identify which situation is which. -3-

7 There are also skills and knowledge required for some parts of law practice which go beyond knowledge of substantive law. A trial under applicable rules of evidence and procedure can require very sophisticated interpersonal communication within a construct of highly technical rules. Successful regulation of the practice of law depends in large part on licensure. The state limits licensure to those who take steps to meet specified criteria in three areas: education, examination and character. Once licensed, the state strives to ensure minimum competency with ongoing education and conduct standards. These standards also seek to protect clients and society from the potential for abuse of the power the attorney-client relationship gives an attorney. If the market were the only regulator of those providing legal services, economic theory teaches that competency and ethics would be haphazard, and controlled principally on the basis of cost. 5 Licensure establishes a uniform set of minimum continuing standards and eliminates the diseconomies which would be present if each client had to ascertain and deal individually with these questions. In some instances, however, licensure requirements may need to be relaxed where the legal service being provided can be readily determined to be of a simple nature and/or where others have 5 See Roger Blair & David Kaserman, Preservation of Quality and Sanctions Within the Professions, in REGULATING THE PROFESSIONS 185, 186 (Roger Blair & Stephen Rubin eds., 1980). The quality of professional services is generally difficult to evaluate on an ex ante basis and is often hard to gauge ex post.... Uncertainty about the quality of professional services has an adverse impact on the entire occupational group. Consumers are forced to rely on some market statistic to judge the quality of prospective purchases of services. Each professional will have an individual incentive to reduce quality to save on costs because the returns to high quality mainly accrue to the entire group rather than to the individual seller. There are two consequences: (1) the average quality of professional services will fall, and (2) the size of the market is reduced. -4-

8 skills, training, and ethical standards which provide adequate assurance of protection to the public. One goal of the task force has been to determine those areas where the public can be effectively served by persons other than lawyers licensed by the State of Texas. Current Regulation in Texas There are several statutes currently regulating who can practice law in the State of Texas. Chapter 81 of the Texas Government Code is the most comprehensive statute defining and regulating the practice of law in Texas Definition (a) In this chapter, the practice of law means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined. (b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law. (c) In this chapter, the practice of law does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. This subsection does not authorize the use of the products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter. TEX. GOV T CODE (as amended 1999) State Bar Membership Required (a) Except as provided by Subsection (b), a person may not practice law in this state unless the person is a member of the state bar. -5-

9 (b) The supreme court may promulgate rules prescribing the procedure for limited practice of law by: (1) attorneys licensed in another jurisdiction; (2) bona fide law students; and (3) unlicensed graduate students who are attending or have attended a law school approved by the supreme court. TEX. GOV T CODE A suite of other statutes overlap Chapter 81's basic framework for determining who may practice law in Texas. Some of these other statutes are penal Prohibited Acts (a) A person, other than a person described in Subsection (b), may not charge or receive, either directly or indirectly, any compensation for all or any part of the preparation of a legal instrument affecting title to real property, including a deed, deed or trust, mortgage, and transfer or release of lien. (b) This section does not apply to: (1) an attorney licensed in this state; (2) a licensed real estate broker or salesman performing the acts of a real estate broker pursuant to The Real Estate License Act (Article 6573a, Vernon s Texas Civil Statutes); or (3) a person performing acts relating to a transaction for the lease, sale, or transfer of any mineral or mining interest in real property. (c) This section does not prevent a person from seeking reimbursement for costs incurred by the person to retain a licensed attorney to prepare an instrument. TEX. GOV T CODE Falsely Holding Oneself Out as a Lawyer (a) A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person holds himself or herself out as a lawyer, unless he or she is currently licensed to practice law in this state, another state, or a foreign country and is in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed. -6-

10 TEX. PENAL CODE (a) Unauthorized Practice of Law (a) A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person: (1) contracts with any person to represent that person with regard to personal causes of action for property damages or personal injury; (2) advises any person as to the person s rights and the advisability of making claims for personal injuries or property damages; (3) advises any person as to whether or not to accept an offered sum of money in settlement of claims for personal injuries or property damages; (4) enters into any contract with another person to represent that person in personal injury or property damage matters on a contingent fee basis with an attempted assignment of a portion of the person s cause of action; or (5) enters into any contract with a third person which purports to grant the exclusive right to select and retain legal counsel to represent the individual in any legal proceeding. (b) This section does not apply to a person currently licensed to practice law in this state, another state, or a foreign country and in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed. TEX. PENAL CODE (a)-(b). Evaluating the Need to Revise Texas s Statutes The current Texas statutes on their face are overbroad and unrealistic in certain respects. For example, laypersons who gratuitously comment on legal matters and in-house lawyers licensed in other states who advise their employers can be in violation of the statutes, literally-read. The statutes also do not reflect significant exceptions which have been read into the application of the statutes. Individuals have the right to represent themselves pro se and non-lawyers often are allowed to represent clients in federal and state agency proceedings. Fortunately, the problematic nature of the -7-

11 UPL statutes has been largely circumvented in practice by the prosecutorial discretion of the Unauthorized Practice of Law Committee appointed by the Supreme Court, which has chosen to read unwritten limitations into the statute s explicit terms. Texas s current statutes are comparable to the UPL statutes of other states. 6 All of the statutes appear to suffer from similar problems of overbreadth and lack of precision. The difficulty of defining the scope of the unauthorized and authorized practice of law has been noted by the American Law Institute. The definitions and tests employed by courts to delineate unauthorized practice by nonlawyers have been vague and conclusory In fact, the American Law Institute does not even attempt to formulate a definition for the unauthorized practice of law. The Task Force reviewed virtually all of the UPL statutes in the nation and reached essentially the same conclusion as did the American Law Institute there was none which provided a satisfactory model for improving and modernizing the Texas statutes. The Structure of the Proposed Statutory Revision The Task Force s proposed revision, attached as Appendix A and discussed in detail below, would replace existing sections 81.10l and of the Texas Government Code and necessitate a revision of chapter 83 of the Texas Government Code. 8 The revision has three major parts. New See American Bar Association Center for Professional Responsibility, 1994 Survey and Related Materials on the Unauthorized Practice of Law/Nonlawyer Practice (1996) (summarizing the UPL laws and decisions of the fifty states). See also Washington State Bar Ass n Committee to Define the Practice of Law, Report (July 30, 1999) (suggesting a new UPL statute for the State of Washington) <http://www.wasba.org/c/cdpl/report.htm>. RESTATEMENT OF THE LAW GOVERNING LAWYERS 36 (2000). Chapter 83, which is directed at the preparation of legal instruments affecting title to real property, has two purposes. In addition to regulating the practice of law, that chapter is directed at prohibiting one party to a real estate transaction from charging the other party for -8-

12 section sets forth a general definition of the practice of law. New section specifies which persons, in addition to members of the State Bar of Texas, are entitled to engage in specific conduct within the practice of law and the circumstances under which they can practice law. New sections and respectively allow the Unauthorized Practice of Law Committee to call on the Office of Attorney General for assistance in investigations and enforcement and provide for a private cause of action against those who engage in the unauthorized practice of law. The Task Force considered two alternative structural approaches in drafting the proposed statute. 9 The one eventually adopted uses general language to establish the baseline definition and prohibition of the unauthorized practice of law, and then narrows the scope of the prohibition with specific exceptions to the general rule. This approach maintains continuity with the current statutory framework, which continuity was considered advantageous in a policy sense. An alternative approach preparation of legal instruments. That latter issue is different from the UPL issue of whether a person can act as a personal advisor to another in a non-arms-length relationship in giving legal advice. The chapter 83 provisions accordingly would need to be revised to apply only to the issue of one party to a real estate transaction charging compensation to the other for the preparation of legal instruments. The present Texas Penal Code provisions would not be changed or moved, as they are directed more at barratry than at regulating who can practice law. 9 The Task Force also recognizes that the Supreme Court has inherent constitutional power to regulate the practice of law, see Unauthorized Practice of Law Comm. v. Cortez, 692 S.W.2d 47, 51 (Tex. 1985); State Bar v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994), and hence can make these and other changes if it chooses to do so. -9-

13 which would define the practice of law initially with specifically-described categories of conduct was considered and rejected because of the difficulty in enumerating all of the specific tasks which fall within the practice of law. 10 The proposed statute, and certain subsections within each, are discussed below. Discussion in text usually relates to the major policy decisions faced by the Task Force. Explanatory information as to the derivation or meaning of the statutory language is usually included in the footnotes. Section Defining the Practice of Law Definitions A. The practice of law, as used in this chapter, includes Providing legal representation; 2. Providing legal advice; 3. Preparing or negotiating, in whole or in part, a will, trust, contract, conveyance, pleading, or other instrument 12 to the extent such preparation or negotiation is performed or offered explicitly or implicitly to provide legal advice or legal representation; or 4. Those activities described in section B. B. Legal representation means acting as an advocate in governmental adjudicative proceedings in a court or administrative agency to determine the specific rights or obligations of one or more persons. The definition of legal representation is relatively straightforward because the conduct is readily apparent making an appearance in court or before an administrative agency by the filing A variant of the two approaches could be to include both general and specific descriptions in the definition of the practice of law. As used in the Government Code, Includes and including are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded. TEX. GOV T CODE (13). 12 This language is derived from current section (a). -10-

14 of a pleading or entering within the bar to argue a case. Legal representation involves a detailed knowledge of procedural and evidentiary rules which go beyond a substantive analysis of a client s specific legal situation, and hence is a concept different from but sometimes overlapping with the concept legal advice. Legal representation is regulated without regard to compensation or reliance due to the strong policy interest of the courts in having competent and ethical officers of the court involved in adjudicative proceedings. Policy questions arise as to advocacy situations other than before a court of law. Administrative proceedings which adjudicate disputes call for the same skill sets as court adjudication and are to be treated the same under the proposed statute. On the other hand, legislative advocacy (lobbying) historically has been the province of citizens. Advocacy in administrative rulemaking (non-adjudicative) proceedings resembles legislative lobbying and should be similarly excepted from the definition of legal representation. Another definitional issue involves arbitration and mediation, which historically have been commercial procedures handled by citizens involved in the dispute, with or without legal counsel. These procedures are popular because they allow for dispute resolution as an alternative to assertedly more expensive and regulated judicial and administrative procedures. The definition of legal representation accordingly is drawn to exclude non-governmental proceedings which do not occur before judicial and administrative bodies. -11-

15 Advocacy in lobbying, rulemaking, arbitration or mediation proceedings would still qualify and be regulated as the practice of law if legal advice is given in the course of that conduct. 13 C. Legal advice means acting in a professional capacity as a personal advisor to another person as to the specific rights or obligations of one or more persons through the interpretation and application of laws, regulations, and other legal standards; Section C addresses a very serious definitional issue, not adequately confronted before how to delineate between not-to-be-regulated discussion of legal matters in ordinary conversation and regulated advice on legal matters. Under the current statute, the giving of advice... requiring the use of legal skill or knowledge is prohibited. Yet we know that persons frequently discuss and opine about legal matters in ordinary, everyday conversation conduct that should not, and realistically cannot, be prohibited. If we are to be a nation of laws, then all citizens must be able to discuss and opine about the meaning and application of laws to themselves, their friends and relatives, and others. Politicians and their constituents must be able to discuss what the laws mean, so that they can determine if the laws make sense in their application. Employers and their employees must be able to discuss whether the employers are acting properly in their 13 See State Bar of Texas Ethical Guidelines for Mediators, 11 ( A mediator should not give legal or other professional advice to the parties ) and 14 ( A mediator should encourage the parties to reduce all settlement agreements to writing ). The vast majority of states have no rules or court decisions addressing UPL issues which arise in mediation. Supreme Court of Virginia Dept. of Dispute Resolution, Guidelines on Mediation & the Unauthorized Practice of Law, App. A, <http://www.courts.state.va.us/drs/upl/appendix_a.html>. -12-

16 business dealings. We do not want to discourage the acquisition and passing on of legal knowledge ; to do so would frustrate the goal of achieving a broad and uniform compliance to what the laws say. There are three major qualifiers included in this new definition of legal advice, in addition to merely interpreting laws: 14 advising as to specific rights or obligations of another person, acting in a professional capacity, and acting as a personal advisor. The concept of advice as to specific rights or obligations of another person is designed to exclude comments by politicians and commentators from being regulated. General discussions of legal matters should be encouraged. Regulation of that type of speech has First Amendment implications which should be avoided. The concept of acting in a professional capacity is designed to exclude comments made gratuitously by friends and acquaintances, as well as by politicians and commentators, from the definition of the practice of law. Acting in a professional capacity is defined in section G as involving any one of the following criteria: compensation, waiver of compensation for pro bono reasons by one who normally would be compensated, representing oneself as a lawyer or attorney, and a course of conduct in holding oneself out as having expertise in legal matters. All of these objective criteria share the same focus, which is conduct inducing reliance by a member of the 14 Of course, the criterion of interpreting laws is quite important. Differentiating between legal advice and business advice can be a difficult analysis in specific situations, e.g., the advice of a CPA to a client concerning shareholder versus general partner liability, the advice of a human resources consultant to a business in structuring employment benefit plans, the advice of an environmental consultant on remediation of toxic sites. Because of the inherently fact-specific nature of the analysis, determining whether a person has gone beyond mere business advice is best left to the courts for a case-by-case determination as is done now under the current statute. -13-

17 public on the provider s special competence. Conversely, discussions of legal matters in other circumstances in which the person receiving the advice has no reasonable, objective reason to rely on the expertise should not be treated as the practice of law. The concept of acting as a personal advisor is designed to exclude comments by persons in an arms-length relationship to the person receiving the advice. An example would be a general contractor who advises the owner of what zoning, building code and related provisions apply to a building being built or remodeled by the general contractor for the owner. In armslength dealings, useful discussions of legal matters would be chilled if the person opining on legal matters were considered to be practicing law on behalf of the other party, even if the person making the comments is receiving compensation in the transaction from the party to whom the opinions are given. In applying this concept, the courts would need to distinguish between situations in which the comments relate to work being properly done by the party and situations in which the comments exceed that limited scope. For example, a title company could not use this provision to advise a buyer or seller as to the drafting of legal instruments because that advice would fall outside the title company s role as an insurer. 15 D. In a professional capacity means acting i) with the expectation that compensation for such advice will be provided by or on behalf of the person receiving the advice or that such compensation, although ordinarily expected by the provider, will be waived for charitable or civic reasons, ii) with the express or implied representation that the provider is an attorney or lawyer, or iii) as part of a pattern of recurring conduct in which the provider holds 15 See, e.g., Hexter Title & Abstract Co. v. Grievance Committee, 179 S.W.2d 946 (Tex. 1944) (a title company is not justified in drawing real estate documents even where those documents would have some impact on the title insurance policy to be issued and even where the title company used licensed lawyers to draft the documents). -14-

18 himself or herself out as an advisor having special competence in the interpretation and application of laws, regulations, and other legal standards. The Task Force had difficulty in determining which criteria to use for the dividing line between the practice of law to be regulated and the discussion of laws to be encouraged. Both involve the same subject matter (giving of legal advice) and hence eliminates that criterion (which is the basis for the current statute s regulatory scheme) as a meaningful distinction. In the end, the Task Force chose to use three objective criteria to describe those situations where a person should be able to rely on the legal skill of the provider. The first criterion was compensation provided as a quid pro quo for the advice. If a person pays for legal advice, he or she should be entitled to an assured minimum level of competence and ethics. 16 A subset of the first criterion recognizes that lawyers often will waive compensation in charitable or civic situations; if a provider normally charges for his or her services, services provided on a pro bono basis should also be regulated. The second criterion is whether the service is provided with a representation that the provider is a lawyer. In that circumstance, the client should be entitled to that type of service Compare TEX. OCC. CODE (a)(13) ( practicing medicine defined to include as one alternative criterion if the person directly or indirectly charges money or other compensation ), TEX. REV. CIV. STAT. ANN. art. 6573a (the definition of real estate broker includes the criterion for a fee, commission, or other valuable consideration ) Compare TEX. OCC. CODE ( practice of public accountancy defined to include as a criterion if the person represents to the public that the person is certified or registered under this chapter ); TEX. OCC. CODE (a)(13) ( practicing medicine defined to include as one alternative criterion if the person publicly professes to be a physician or surgeon ); TEX. OCC. CODE (practice of psychology defined to include as an alternative criterion if the person represents the person to the public by a title or description of services that includes the word psychological, psychologist, or psychology ). -15-

19 The third criterion addresses a possible loophole -- where an organization provides individualized advice to its members or others on a continuously gratuitous basis. If the provider holds himself out as specially qualified, then the client should be entitled to the level of service as would be provided by a lawyer. The Task Force was concerned, however, about the possible breadth of the element of holding oneself out as having special competence. That type of assertion could arise in normal conversation. For that reason, the Task Force chose to further condition the third criterion with the requirement that such claims be part of a pattern of recurring conduct as would arise where an organization was engaging in an ongoing practice of providing legal advice. E. Individual means a human being. 18 F. Person means an individual, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any legal entity. 19 G. Attorney or lawyer means an individual who is a member of the state bar 20 or is otherwise licensed and in good standing to practice law in another state of the United States The definition is derived from Tex. Penal Code 1.07(26) ( Individual means a human being who has been born and is alive ). The definition is derived from Tex. Government Code ( Person includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity. ). State bar is defined as the State Bar of Texas in Tex. Government Code (1). Membership in the state bar is determined pursuant to Tex. Government Code et seq. The term state is defined in the Government Code, when referring to a part of the United States, to include any state, district, commonwealth, territory, and insular possession of the United States and area subject to the legislative authority of the United States of America. TEX. GOV T CODE (7). -16-

20 H. The definition of the practice of law in this section is not exclusive and does not deprive the judicial branch of the power and authority to determine whether other services and acts not enumerated may constitute the practice of law. 22 Section Who Can Practice Law and Under What Circumstances Qualifications for the Practice of Law A. Except as provided in subsection B, a person may not engage in the practice of law in this state unless the person is a member of the state bar. B. The following additional persons may engage in the practice of law to the limited extents specified below: Individuals, to the extent they are acting pro se; Same as Tex. Government Code (b). The judiciary retains primary governance over the courts and interpretation of the laws, and the legislature s power to regulate the practice of law is only secondary and in aid of the judiciary s power. See, e.g., Unauthorized Practice of Law Comm. v. Cortez, 692 S.W.2d 47, 51 (Tex. 1985); State Bar v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). See also TEX. GOV T CODE ( Only the supreme court may issue licenses to practice law in this state as provided by this chapter. The power may not be delegated. ). The Texas Supreme Court exercised its constitutional power over the practice of law by issuing its own order following the passage of the State Bar Act of 1979, ratifying that statute and thereby eliminating possible discrepancies between the court s previous orders and the new legislative statute. See Order, S.W.2d (Texas Cases) XXXIII (Tex. 1979). A Supreme Court order could be appropriate if the Legislature enacts any significant revision of chapter 81 or if the Supreme Court chose to implement changes itself. In addition to the categories of additional practitioners set forth below, one member of the task force believes that Chapter 81 should be amended to allow any person to practice law on behalf of a client if the client gives written consent after having been informed of the person s background, experience, and lack of a license to practice law in this state. Such a provision would be a dramatic departure from the current regulatory scheme. This subsection would carry forward current law allowing an individual to represent himself in governmental proceedings. See, e.g., Tex. Const. art. 1, 10 (criminal prosecutions); Tex. R. Civ. P. 7 (actions of a civil nature); 28 U.S.C (all courts of the United States). -17-

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