POSTED: 1:30 a.m. HST, Jun 10, 2010
QUESTION: What ever happened to the controversial proposal on the unauthorized practice of law that was before the Hawaii Supreme Court in 2009?
ANSWER: It's dead.
The Hawaii State Bar Association came up with the proposal to clarify the criminal statute that prohibits nonlawyers from practicing law. It sought to specify what kinds of activities would fall under the prohibition. The misdemeanor law carries a jail term of up to a year and a fine of up to $2,000.
The proposal drew strong and widespread opposition from those who contended it went too far. They contended it criminalized practices that were part of their business and would result in higher costs. Among the opponents were insurance companies, accountants, Realtors and at least one small business that helps people fill out legal papers so they can handle their own civil court cases at costs cheaper than hiring lawyers.
Jeffrey Sia, the bar president at the time, maintained that the proposal was not motivated by greed among lawyers to protect their turf. Rather, it would have helped shield the public from flawed legal advice that would jeopardize rights. Victims would end up paying more money to later hire an attorney to resolve the problems, Sia said.
But opponents said the proposal was overly broad.
They complained about provisions that prohibited "performing legal research" or "giving advice or counsel to another person about the person's legal rights and obligations or the legal rights and obligations of others."
Another provision outlawed "selecting, drafting or completing documents that affect the legal rights of another person."
Insurance companies, for example, said the provisions would outlaw current practices routinely handled by nonlawyers, such as telling the insured about their rights and obligations and types of coverage.
Betty Marais, a nonlawyer and former legal secretary who runs Legal-Ez, which helps clients fill out legal forms, said the proposal would shut down her business.
The bar association amended its proposal. The high court set a deadline in April last year for comment on the new version. But it still drew opposition, including objections by Attorney General Mark Bennett, who contended the proposal was not only overly broad, but ambiguous. He said the enforcement of the state law would be "extremely difficult."
In a letter dated July 2 last year, Chief Justice Ronald Moon notified the bar association that the court decided to "table the proposal with no immediate plans for further consideration."
Moon cited the concerns by Bennett and "the many comments received, confusion about the relationship between the proposed regulatory rule and the criminal law, and the lack of a clear enforcement process."
This update was written by Ken Kobayashi. You can write us at What Ever Happened to ..., Honolulu Star-Advertiser, 500 Ala Moana Blvd., Suite 7-210, Honolulu 96813; call 529-4747; or e-mail email@example.com.