Lawyers Journal

Proposal on the definition of the practice of law in Massachusetts

The following is the proposal presented by the Task Force to Define the Practice of Law in Massachusetts to the House of Delegates on the definition of the practice of law" in Massachusetts. To comment on the proposal or for more information, click on www.MassBar.org.

Preliminary statement

In 2003, the American Bar Association recommended that every jurisdiction adopt a definition of the practice of law; that each jurisdiction's definition should include the basic premise that the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity; and that each jurisdiction should determine who may provide services that are included within the jurisdiction's definition of the practice of law and under what circumstances, based upon the potential harm and benefit to the public.

In response, the House of Delegates of the Massachusetts Bar Association hereby adopts the following definition of the "practice of law." We do so with the belief that, since the practice of law necessarily involves judgments as to rights and obligations of others under the law, the public interest is served only if these judgments are rendered by individuals who have met rigorous educational requirements; have demonstrated such ability by passing the bar examination; have been certified of honest demeanor and good moral character; are able to demonstrate an undivided allegiance, a conspicuous degree of faithfulness and disinterestedness, absolute integrity, and utter renunciation of every personal advantage conflicting in any way directly or indirectly with the interests of his client; are bound by canons of ethics; are licensed by the Commonwealth; and are subject to the Court's direct oversight.

Consequently, the chief reason for defining the practice of law is to protect the public welfare and ensure that members of the public not suffer harm from the activities of persons who are not trained to apply the general body and philosophy of the law to fact specific matters, who may be influenced by factors other than the client's interests, or who are not subject to the direct oversight and supervision of the Court.

We recognize that no single definition can be all-encompassing and that, to a large extent, whether a particular activity constitutes the practice of law must be decided upon its own particular facts. See Opinion of Justices, 289 Mass. 607, 613 (1935); In re Shoe Mfrs. Protective Ass'n, 295 Mass. 369 (1936); and Massachusetts Conveyancers Ass'n, Inc. v. Colonial Title & Escrow, Inc. (Suffolk Superior Court, C.A. No. 96-2746-C, June 5, 2001).

The Massachusetts Bar Association is also mindful that, in a just society, all persons must be afforded access to competent advice and counsel as to their legal rights and obligations. Therefore, with respect to the indigent members of our society and to those whose access to justice is impeded by various obstacles, the proposed definition permits governmental entities, qualified legal assistance organizations and not-for-profit entities to provide advocacy assistance by non-lawyers, provided that no fee or other remuneration is charged directly or indirectly for the assistance.

The Definition of the Practice of Law

(a) The practice of law shall be performed only by those authorized by the Supreme Judicial Court of Massachusetts.

(b) Definitions:

(1) The "practice of law" is the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.

(2) "Person" includes a corporation, an association, a trust, a partnership, and any other organization or legal entity.

(3) "Tribunal" includes a court or other adjudicatory body.

(c) A person is presumed to be practicing law when engaging in any of the following conduct on behalf of another:

(1) Giving advice or counsel to a person as to his or her legal rights or responsibilities or those of others;

(2) Selecting, drafting, reviewing, recording, or completing legal documents or agreements that affect the legal rights or responsibilities of a person;

(3) Creating, conveying, evaluating, or terminating a person's legal interest in real property;

(4) Representing a person before a tribunal, including, but not limited to, preparing or filing documents or conducting discovery, or appearing before such body; or

(5) Negotiating legal rights or responsibilities on behalf of a person.

(d) Exceptions: The following are permitted as exceptions to the requirements of Paragraph (a):

(1) Serving in a neutral non-adjudicative capacity as a mediator, conciliator or facilitator, or in an adjudicative capacity under court supervision;

(2) Affording advocacy assistance by non-lawyers through a governmental entity, a qualified legal assistance organization, or a not-for-profit entity, where no fee is charged, or as permitted by G.L. c. 209A;

(3) Participating in labor negotiations, arbitrations, or conciliations arising under collective bargaining rights or agreements; and

(4) Participating in a regulatory or administrative proceeding pursuant to the rules of the agency, where no fee is charged for such participation.

Comment

[1] The primary consideration in defining the practice of law is the protection of the public. Thus, for a person's conduct to be considered the practice of law, there must be another person for whom the benefit of that conduct is directed, and there must be a relationship of trust and confidence created for the purpose of legal advice.

[2] To a large extent, the question of whether a particular activity constitutes the practice of law must be decided upon its own particular facts. See Opinion of Justices, 289 Mass. 607, 613 (1935); In re Shoe Mfrs. Protective Ass'n, 295 Mass. 369 (1936); and Massachusetts Conveyancers Ass'n, Inc. v. Colonial Title & Escrow, Inc. (Suffolk Superior Court, C.A. No. 96-2746-C, June 5, 2001).

[3] The presumption that one's engagement in one of the enumerated activities is the "practice of law" may be rebutted by showing that the activity is incidental to an activity that is universally recognized as distinct from the practice of law, and that the public's interest is adequately protected. See Lowell Bar Ass'n v. Loeb, 315 Mass. 176 (1943).

[4] For the purposes of Paragraph (d)(2), advocacy shall mean assisting an institutionalized person or a person who has obstacles to access to justice to effectively communicate his or her needs and concerns

[5] The activities of a "legislative lobbyist" or an "executive agent," as those terms are defined in G.L. c. 3, ß 39(k), do not constitute the "practice of law," as defined above.

[6] The activities of a lawyer or a nonlawyer who is permitted to practice law under the Rules of Professional Conduct, such as Rule 3:03, Rule 3:04 or Rule 3:05, are authorized by the Supreme Judicial Court and, therefore, allowed under this definition. The provision of services under the supervision and responsibility of a lawyer in compliance with the Rules of Professional Conduct is also permitted under this definition. See Rule 5.3 of the Rules of Professional Conduct.

[7] Administrative and regulatory agencies often permit nonlawyers to represent and assist persons in the course of their proceedings. Though some deference to those agencies in deciding who may appear before them is appropriate, the Supreme Judicial Court retains ultimate authority as to deciding what is and what is not the "practice of law." Opinion of the Justices, 279 Mass. 607 (1932).

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