HSBA President's Update on the UPL Rule
April 30, 2008
The HSBA continues to work on a revision of the Hawaii Supreme Court’s proposed unauthorized practice of law (“UPL”) Rule. Several professional groups commented that the proposed rule would infringe on their professional activities as presently permitted by law or at least as conducted. Feedback from HSBA members generally has been supportive of such a rule, believing a rule is necessary to protect consumers from harm resulting from the unauthorized practice of law. The HSBA has communicated with the various groups and will continue to work with them to formulate an acceptable rule.
As previously reported, some of the professional groups sought legislative action in the form of an amendment to H.R.S. §605-14 to codify their definition of the “practice of law” and to exempt certain professional groups from any UPL Rule that may be promulgated and adopted by the Court. The HSBA opposed the amendment, as previously reported. Last week this amendment regarding the UPL issue was deleted.
One of the criticisms leveled against the HSBA about the UPL Rule is that there is no evidence of anyone being harmed by someone engaged in the unauthorized practice of law. If you know of situations involving persons harmed in some way by a non-attorney providing legal advice or counseling or otherwise engaged in the practice of law, please share your experiences. Also, as the HSBA continues to work on a revision of the UPL Rule, any comments or suggestions you might have are welcome. Please send your experiences, comments or suggestions to
president@hsba.org.
Jeffrey H. K. Sia
From April 4, 2008:
In October, 2007, the Hawaii Supreme Court posted its proposed UPL Rule on the Judiciary website, and it generated much comment and concern from various groups and organizations that the proposed UPL Rule would infringe on their professional activities as presently permitted by law. HSBA’s Consumer Protection Committee initially proposed such a rule to the Court in July, 2007, out of an on-going concern that individuals and organizations can be hurt, personally and financially, by untrained, unlicensed, and unregulated individuals who handle their legal matters. In recent years, 25 other states and the District of Columbia have adopted similar rules or statutes reflecting a nationwide concern for consumers. Promulgation of a court rule as a means to help protect consumers in this regard is not unique.
It was not the HSBA’s intention to deprive anyone of their right to conduct and handle matters they legally are entitled to do. Recognizing the concerns expressed by others, the HSBA requested, and the Court granted, an extension to May 30, 2008, within which the HSBA may respond to the Court’s version of the proposed UPL Rule. The HSBA, through its Consumer Protection Committee, is working on revisions to the proposed UPL Rule to address and allay the concerns expressed by others, and has communicated its plan and intent to those organizations that expressed their concerns about the UPL Rule.
Some of these organizations have chosen to seek legislative assistance to amend H.R.S. §605-14, which currently prohibits the unauthorized practice of law, so as to codify their own definition of the “practice of law,” which essentially would exempt themselves from any UPL Rule that may be promulgated and adopted by the Court.
The HSBA is opposing the proposed amendment on three grounds: 1) the constitutional separation of powers; 2) the exemption being overly broad; and 3) the existing effort to develop a revised UPL Rule that takes their concerns into consideration.
This is an on-going process, and there will be up-dated information provided to you. If you have any questions, please do not hesitate to contact me.
Please send responses to president@hsba.org.
Jeffrey H. K. Sia