Task force to consider defining practice of law

Issue November 2003

"I can see the headline in the Herald now … 'Lawyers Don't Know What They're Doing'," joked MBA Vice President John Dugan as be began his portion of a mini-debate on the question of whether to set a definition of the practice of law that was the centerpiece of the Sept. 25 House of Delegates meeting.

That moment of levity launched a series of programs conceived by MBA President Richard C. Van Nostrand to promote greater interest in HOD meetings and specifically to explore the leadership's interest in joining the national debate on this particular topic. The American Bar Association recently issued a task force report that urges individual states to develop their own definition of law practice.

Van Nostrand recruited Dugan and attorney Denise Squillante, Delegate for Bristol County (Region 3) and past Family Law Section Council chair, to present opposing positions in opening statements to the House members.

"I strongly advocate that we look at defining what the practice of law is. Who better?" Squillante stated, adding ominously, "… before someone else does it for us."

Her reasons in favor of developing a definition included, "to deal with the issue of the illegal practice of law, to protect the judicial system and access to justice, and to help improve the image of the lawyer - to remind the public of some of what we do."

Dugan countered that to seek a workable definition would be near impossible.

"In our world of reality, there are so many areas that require knowledge and application of law," he said, citing CPAs, school administrators, health care professionals, human resources and other professionals as examples.

"Is there one definition that will accurately describe the practice of law," Dugan asked. He pointed to recent attempts by bars in several states, notable Utah, which developed a very narrow definition tied mostly to criminal proceedings, and New Hampshire, where a task force failed to reach a consensus.

"If you were able to answer the question," Dugan asked, "would the result give rise to more questions and disputes?"

As the debate opened to House members, points were scored for either side of the issue. Among them:

•  "My concerns is that the ABA's recommendation will lead to 50 different interpretations in 50 different states and, especially for lawyers who practice in more than one state, that might cause more confusion." - MBA Past President Joseph Vrabel.

•  "The law is a living thing. Would we be boxing ourselves in?" - Joan McDonough, Delegate for Plymouth County (Region 2).

•  "What about people who are institutionalized? The reality is there are no lawyers there, and a definition might deter people from doing advocacy." - Lee Gartenberg, Delegate for Middlesex County (Region 7) and past Individual Rights & Responsibilities Section Council chair.

•  "If we don't define the practice of law, how can we deal with the unauthorized practice of law?" - Lynn Whitney, Delegate and president of the Bristol County Bar Assocation.

•  "Any definition should be a public relations effort, to help the public understand why someone should choose a lawyer or pay extra for a lawyer's services." - William Friedler, At-Large Delegate.

The "last word" on the topic came from former MBA president Michael Greco, now candidate for the position of president-elect of the ABA.

"I worry about chaos," Greco said. "I worry that lawyers are being marginalized. I worry about a society without lawyers.

"If elected by the ABA, I will convene a commission on the role of the lawyer in society. The last time this was done was 40 years ago. I think it's worth the effort, even if we come up with the conclusion that it's impossible.

"I worry," Greco said, "because this federal government and its agencies, by inadvertence or by coincidence are targeting the independence of lawyers - and that should worry you.

"I worry about the state of our profession - that lawyers are being morphed into something less relevant that we are today - and we will be the worse for it."

On that somber note, Van Nostrand closed the discussion and asked for an informal show of hands on whether to establish a task force to delve into the definition debate. The vote was unanimous and Van Nostrand promised to begin assembling a panel.