In an ongoing “dual crisis” made more relevant by its own history, participants and current events, there was serious scrutiny being given to what Utah State Senator Steve Urquhart (Republican- St. George), a Washington County attorney, says is a big problem within his profession.
SJR 3 – Proposal to Amend Utah Constitution – Regarding the Practice of Law is an attempt by Urquhart to advance the discussion on allowing more people to have access to qualified legal representation.
Urquhart, who has served on the Board of Directors of the Southern Utah Community Legal Center, has offered services to many clients involved in family law cases where one spouse has all of the assets acquired in marriage and the other has no means for adequate representation during dissolution. Because of this, the amendment to the Utah Constitution is designed to give those in need more access by allowing additional legal resources in the marketplace.
The problem that Urquhart is encountering is that Utah’s attorneys, via their State Bar, don’t want to change the status quo, forcing, Urquhart feels, the need for an amendment to the Utah Constitution to effect the reform he seeks.
“It’s a serious problem when more than half of our residents cannot afford legal services in matters that would demand expert advice,” said Urquhart, “Imagine that there were only M.D.’s in our society and that there weren’t any optometrists, podiatrists or physical therapists. This is the situation that we face. A paralegal has to work under the licensure of an attorney… there are charlatans out there, preying on vulnerable people… We make them vulnerable, by not providing anything,” Urquhart emphasized. He termed the proposed alternative as “limited law practitioners,” who would “hang out a shingle” after demonstrating expertise and adequate training.
“This is the one profession that [legislators] can’t touch because the Supreme Court controls the practice of law in the state,” said Urquhart when asked about other licensing and professional certifications as authorized by Utah law.
James Gilson, a lawyer in the profession for 25 years and current president of the Utah State Bar, spoke in opposition to the proposed resolution and referendum – as did several commissioners of the bar association.
“Having non-lawyers provide legal services would cause many more problems than it would help, given the complexities of the law,” Gilson testified.
A visit to his association’s website indicates that the membership is “accessible to all” (the phrase displayed in large type on the site) of the public. Gilson testified that the Utah Bar has many programs in place to facilitate the delivery of legal services to the poor at “low or no cost.” Gilson, using Urquhart’s analogy, said that the solution would not be to scrap the existing regulatory system anymore than to “attempt greater access to healthcare by simply allowing anyone to practice medicine.”
“The vast majority of law is practiced outside of the courtroom,” said Gilson, “and if it’s not done properly, it ends up in the courtroom.” He added that the Utah Bar is not an “association,” but rather its own “regulatory body” and three core functions are admission to the practice of law, disciplinary and educational for the members. “Non-lawyers participate in the regulation of the practice of law,” Gilson added, “this bill would simply ‘deregulate’ the practice of law in the state.”
Urquhart challenged the assertion that access to representation is available to all and did so before this Senate Government Operations and Political Subdivisions Committee.
Senator Daniel Thatcher (Republican – West Valley City) offered his concern for the need expressed by the proposed resolution.
Thatcher noted that in specialized matters of the law many attorneys are not qualified to advise even though they are licensed to practice. “As I understand it…there is not any requirement for an attorney to disclose a lack of experience in a specific area of the law… if there is someone with a proven expertise in that field, how would they serve the public with less diligence than an attorney?” asked Thatcher of Gilson.
“Just giving information about what the law is something that the ‘non-lawyer can provide. It’s when you are going to then start drafting contracts and acting as that person’s agent in relation to other interactions that would likely constitute the unauthorized practice of law… which is not a crime by the way,” observed Gilson.
“There are over 17 different exceptions [made by the Supreme Court] to what constitutes the practice of law where you don’t have to be licensed. Other exceptions could be carved-out if appropriate,” Gilson said. “What happens outside of the court effects what happens inside the court.”
Gilson offered an example occurring in Urquhart’s area of St. George where a non-lawyer business misinformed a client causing a serious legal problem for the client. Gilson then proposed that the committee table the matter for further study after the legislative session.
“Informing, counseling or advising is a violation of the law,” said Urquhart and continued by saying, “It is ridiculous to say that I’m advocating that anyone practice law. There are people who have expertise that could be of appropriate service to the community where a ‘dual crisis’ exists,” said Senator Urquhart.
“Where law school graduates are unable to find work, there is still a tremendous unmet legal need,” asserted Urquhart describing the “dual crisis,”
“The majority of people in this state cannot afford lawyers. How does that work out on the supply and demand curve? The way that works out is if you have a ‘restraint of trade’ and you don’t have a true market,” Urquhart explained.
Urquhart’s resolution would give permission for the legislature to look into solutions prior to the national election in 2016. “More than half of our constituents do not have access to justice. Imagine if we funded a highway and we told half of our constituents that they could never drive on it… if we don’t go forward on this, when we say the Pledge, and we say ‘with liberty and justice for all,’ and then mumble under our breath, ‘but we don’t really mean that,'” Urquhart added.
During the committee proceedings, veteran attorney and legislator, Senator Lyle Hillyard (Republican – Logan) was mostly silent, harboring his opinion and expertise on the subject until late in the presentation when he mentioned, “I go to court now, and I see divorce cases where more than half are ‘pro se’ [representing themselves] and its a tragedy where some of the most expensive cases I have in my office right now are people who started out representing themselves.”
Senator Hillyard made a motion to table the Urquhart resolution, to which Urquhart responded by asking the committee members to “Keep this discussion alive. The Bar is expert at snuffing out this discussion… as how to truly provide access to the people. What Senator Hillyard said about people representing themselves ‘gumming up the works…’ Do you think they really want to be ‘pro se..?’ What we really should be looking at is providing some level of service to people who want help with the laws that we put on the books. Please allow this discussion to go forward.”
And with that, SJR003 was tabled by the committee with only Senator Thatcher dissenting.