The State Bar of Michigan has requested that the Michigan Supreme Court consider adopting a rule-based definition of the practice of law approved by the State Bar Representative Assembly. The proposal is intended to codify Michigan’s common law defining the practice of law and to serve as a guide to help protect the public from persons engaged in the unauthorized practice of law. The Standing Committee on the Unauthorized Practice of Law prepared the initial draft of the proposed court rule. Bruce A. Courtade was sworn in as the 78th president of the State Bar of Michigan in September. Courtade is a shareholder with Rhoades McKee, PC, in Grand Rapids, where he practices in the areas of commercial litigation and construction law.
Thorpe: Tell us about the bar’s Special Committee and its report.
Courtade: A Special Committee on Defining the Practice of Law (Special Committee) was approved by the Board of Commissioners in 2010 and appointed by former State Bar of Michigan President Tony Jenkins in March 2011 to:
(1) examine an initial draft of a rule-based definition of the practice of law prepared by the standing Unauthorized Practice of the Law Committee and to provide constructive guidance regarding enhancements, potential benefits to the public and the legal community, and potential areas of concerns;
(2) consider alternative approaches to address the unauthorized practice of law and to consider mechanisms to protect persons needing legal assistance from unauthorized legal practices; and
(3) provide a report of conclusions reached by the Special Committee and its recommendations to the Board of Commissioners.
Members of the Special Committee, composed of eight lawyers and two judges representing a cross section of practice areas and constituencies, reviewed and refined the proposed rule. The Special Committee’s report gives a historical perspective of similar efforts taken in other states and endorses the proposed definition because it codifies and clarifies Michigan common law, provides transparency about what constitutes the practice of law, and furnishes necessary guidance to lawyers and others.
Thorpe: Michigan’s definition of the practice of law has been solely defined by common law. How would that change?
Courtade: If adopted, the proposed rule would codify and highlight existing case law. Further refinements may be necessitated by subsequent case law. The court rule would not alter or limit the Michigan Supreme Court’s exclusive authority to make law on this subject. Rather, the court rule would serve as a readily available, easy-to-find, and user-friendly resource to educate the public about what constitutes the practice of law.
Thorpe: The ways in which citizens get legal information is changing, especially with the growth of the Internet. How does your proposal address that?
Courtade: Right now, it is not easy for the public to know what behavior qualifies as the practice of law and what does not. If the proposed rule is adopted, it will be readily accessible in a number of ways, including on the Michigan Supreme Court website. Michigan consumers would have a readily available, easy-to-find, and user-friendly resource to educate themselves about what constitutes the practice of law in Michigan.
Thorpe: Graduating from law school isn’t enough to actively practice. Describe the other requirements.
Courtade: By state statute, the Michigan Supreme Court has the exclusive authority to regulate the practice of law in our state, which is distinct from the federal government’s authority to regulate the practice of law in federal courts. To fulfill its responsibilities, the Michigan Supreme Court has authorized the Michigan Board of Law Examiners (BLE) to regulate the lawyer admission process in Michigan, the Attorney Grievance Commission and the Attorney Discipline Board to regulate the attorney discipline process, and the State Bar of Michigan to investigate and prosecute practices that constitute the unauthorized practice of law. The requirements for admission to practice law in Michigan are prescribed by the Michigan Supreme Court in the BLE Rules and the Rules Concerning the Bar. Generally, an applicant for admission to the State Bar of Michigan, a mandatory association of all persons licensed to practice law in this state, must
(1) be 18 years old or older;
(2) possess good moral character, as defined by state statute and BLE rules;
(3) have completed, before entering law school, at least 60 semester hours or 90 quarter hours toward an undergraduate degree from an accredited school or while attending an accredited junior or community college;
(4) have a Juris Doctor degree from a reputable and qualified law school with a school year of at least 30 weeks that is incorporated in the United States, its territories, or the District of Columbia and that requires for graduation 3 years of study for full-time students, and 4 years of study for part-time or night students;
(5) submit to a character and fitness investigation conducted by the State Bar and meet the necessary character and fitness requirements as prescribed by state statute and BLE Rules;
(6) achieve passing scores on the Multistate Bar Examination prepared by the National Conference of Bar Examiners, an essay examination prepared by or under the supervision of the BLE or law professors selected by the BLE on subjects identified in the BLE Rules, and the Multistate Professional Responsibility Examination developed by the National Conference of Bar Examiners;
(7) after a certification of qualification has been issued by the BLE, appear personally to present the certificate to the Supreme Court or one of the state circuit courts to take and subscribe to the “oath of office” upon motion made by an active member of the State Bar; and,
(8) join the State Bar by submitting a membership application, order of admission, and the current year’s dues and receive a practice number (license).
There is also a procedure for obtaining admission without examination under certain prescribed circumstances, and a process by which a lawyer licensed in other states may obtain admission to practice in a specific legal proceeding. The stringent requirements that lawyers must meet in order to become licensed to practice law in Michigan are intended to protect the public from harm.
Thorpe: How do paralegals fit into the picture?
Courtade: Paralegals are not subject to the same disciplinary authority as lawyers. However, lawyers who engage paralegals have ethical responsibilities to ensure that the paralegals act consistently with the lawyers’ ethical obligations. Paralegals are not required to be licensed and the State Bar of Michigan has no role in regulating them. In fact, this title is sometimes used to refer to a variety of individuals without regard to their educational qualifications and experiences. The term is also used interchangeably with legal assistant, which can further confuse the qualifications and professional experiences of the individuals working as paralegals. There are two-year and four-year college programs for a paralegal degree, in addition to certification programs that permit the recipient to take a standardized exam and use the designation “Certified Paralegal/Certified Legal Assistant” after passing it. A paralegal or legal assistant is not authorized to practice law in Michigan. If adopted, the State Bar’s proposed rule defining the practice of law would neither enhance nor minimize the role paralegals and legal assistants serve in assisting Michigan lawyers with their clients.
Thorpe: How can citizens protect themselves from the unauthorized practice of law and how do they report violations?
Courtade: There’s a simple answer: know what a lawyer does and report anyone to the State Bar who is trying to practice law without being licensed. An educated citizenry is necessary to protect against harm from unqualified people providing legal services. The proposed court rule is intended to serve as a user-friendly guide to educate the public about what constitutes the practice of law in Michigan. Consumers who are familiar with the court rule will be better equipped to understand the dangers of a non-lawyer’s delivery of legal services and to protect themselves. By declining to use unlicensed people they will avoid being victimized. The Michigan Supreme Court authorized and empowered the State Bar to investigate matters pertaining to the unauthorized practice of law and to file and prosecute actions and proceedings regarding such matters. Reports regarding the unauthorized practice of law are submitted to the State Bar. A simple and easy to use complaint form is available on the State Bar’s website at www.michbar.org/professional/upl.cfm.
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