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does it merely restrain competition and waste resources?

This study will endeavor to answer those questions.

Every state in the nation except Arizona has a statute

or judicial rule that limits the practice of law to licensed

members of the legal profession.  So-called unauthorized

practice of law (UPL) prohibitions make it illegal for any

person who does not hold an attorney's license to assist

another person if that assistance is deemed "practicing

law."  The statutes or rules do not define exactly what

constitutes the practice of law, so it has been up to the

courts to determine on a case-by-case basis what actions are

illegal.  Violations are usually misdemeanors, although they

may be punishable as contempt of court.  Aggrieved individu-

als may bring UPL cases, but that is extremely rare.  UPL

actions are virtually always brought by a bar organization

seeking a permanent injunction, as in Furman's case, to keep

the violator out of the legal services market in the future.

It is through UPL prohibitions that the legal profes-

sion maintains its "closed shop."  They allow state and

local bar organizations to control entry into the market.

No one can obtain bar membership and the accompanying li-

cense to practice without passing the state's bar exam, and

in most states no one is allowed to sit for the exam without

having graduated from an "approved" law school.2  To be ap-

proved under American Bar Association standards, a school

must have a three-year course of study.3  Whether one wants

to litigate the most complex cases or draft simple wills,

the rite of passage is the same.  While UPL prohibitions do

not eliminate competition within the ranks of attorneys,

they restrict competition from the outside.4

The desire for a closed shop is certainly not unique to

the legal profession;5 given the profession's powerful in-

fluence on the law itself, however, it is not surprising

that lawyers have been among the most successful of special

interests in using government to accomplish that objective.

Although some prominent members of the profession have

criticized UPL prohibitions and argued for a free market in

legal services,6 support for them remains strong and unques-

tioning in bar organizations.  Legislation that would open

the market for legal services is certain to meet with their

vehement opposition.

This study will take a critical look at UPL prohibi-

tions from both a constitutional and an economic perspec-

tive.