Custom and Practice Unmasked: the Legal History of Massachusetts' Experience with the Unauthorized Practice of Law
Through educational barriers, occupational licensing, and bar association activities, American lawyers have endeavored to achieve a monopoly on the practice of law. One tool that has helped cement their ability to define lawyer-only turf is the unauthorized practice of law (“UPL”) doctrine.
This Article, which explores Massachusetts’ attempts to bar lay practitioners, reveals that the state’s unauthorized practice of law movement took hold relatively recently. It has been marked by fits and starts, by active proponents and by equally determined naysayers, by headline grabbing politicians and bar leaders, and by increasingly assertive judges. Perhaps most importantly, this account also reveals much about the inefficacy of judicial decision making in regulating lay practice.
Massachusetts’ experience with defining the practice of law recently came to the forefront in one hotly contested field – real estate conveyancing. In 2011, the state’s highest court, the Supreme Judicial Court (“SJC”), interpreted the Commonwealth’s UPL statutes in litigation that remains currently unresolved. Real Estate Bar Association, Inc. (“REBA”) v. National Real Estate Information Services, Inc., 459 Mass. 512 (2011). After acknowledging that the “practice of law” is difficult to define, the SJC invoked “custom and practice” as a critical benchmark by which courts should undertake a fact-based inquiry necessary to determine whether certain conduct by laypersons constitutes unauthorized practice.
This review examines the key rationales cited by the SJC for restricting the field to members of the bar. It reveals a tradition which has attempted to reconcile the public’s access to services against lawyers’ interest in protectionism, but which has left UPL principles in a confused muddle. While the Massachusetts judiciary has carved out for itself the constitutional authority to define the practice of law, its few clear precedents provide insufficient guidance for application to modern social needs and economic realities. The underlying REBA litigation is a useful example of the inherent limitations of the kind of case by case approach which has marked the Massachusetts experience. The Article concludes with cautionary remarks about the consequences of judicial control of the UPL doctrine and identifies alternative mechanisms by which courts could proceed.