Monday, October 4, 2010

Rigertas on the Bar's War on the Unauthorized Practice of Law

Laurel Rigertas, Northern Illinois University, has posted Lobbying and Litigating Against “Legal Bootleggers: The Role of the Organized Bar in the Expansion of the Courts' Inherent Powers in the Early Twentieth Century. It appeared in the California Western Law Review 46 (Fall 2009). Here’s the abstract:
This article examines the historical origins of the judiciary’s inherent power to define the practice of law and argues that the origins of the doctrine might be more grounded in the economic concerns of the legal profession than in the separation of powers doctrine. The organized bar first focused on curbing unauthorized practice in the 1920s. At that time, its main strategy was to lobby state legislatures to define the practice of law. These efforts were largely unsuccessful and by the mid-1920s legislative reform efforts waned. The organized bar renewed its efforts to curb the unauthorized practice of law after the start of the Great Depression in the 1930s. Rather than lobbying legislatures to define the practice of law as it did in the 1920s, however, it changed its strategy and began litigating the issue. In its shift in strategy, the organized bar suddenly contended that trying to define the practice of law would be unwise. Furthermore, citing the separation of powers delineated in the state constitutions, the bar shifted course and now argued that it would be unconstitutional for legislatures to define the practice of law because that was an exclusive power of the judicial branch. The new strategy succeeded and resulted in case law that expanded the inherent powers of the state judiciaries to include the power to define the practice of law.

Evidence suggests the organized bar did not abandon its legislative reform efforts because of concerns about the separation of powers. Instead, the bar might have shifted strategy out of concern that other interest groups, such as realtors, could successfully counter their legislative lobbying efforts, undermining the organized bar’s effort to gain a definition of the practice of law favorable to its economic interests. The shift in the organized bar’s strategy, and the timing of the shift, raises the question of whether the courts’ inherent power to define the practice of law has a solid mandate from the state constitutions and the separation of powers doctrine, or whether the power developed to serve protectionist interests of a private trade group - the bar - which had the cooperation of the judiciary due to their shared membership in the legal profession.

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