Report Title:

Unauthorized practice of law

Description:

Adds section to chapter 605 HRS defining the practice of law. Clarifies that certain activities including pro se representation and publication of legal self-help books are permitted regardless of whether they are considered the practice of law.

THE SENATE

S.B. NO.

1488

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to attorneys.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that, for the protection of the public, it is necessary to define the term "practice of law" to prevent the unauthorized practice of law, as well as to permit activities that do not give rise to the need for public protection and therefore should not require an attorney's license.

The legislature believes that, for a person's conduct to be considered the practice of law, there must be another person toward whom the benefit of that conduct is directed. Therefore, pro se representation should not be considered the unauthorized practice of law. The conduct also must be targeted toward the circumstances or objectives of a specific person. Therefore, the publication of legal self-help books should not be considered the unauthorized practice of law.

The purpose of this Act is to define the practice of law and to clarify what conduct constitutes the unauthorized practice of law.

SECTION 2. Section 605-14, Hawaii Revised Statutes, is amended to read as follows:

"§605-14 Unauthorized practice of law prohibited; definition of practice of law. (a) Except as provided in subsection (c), it [It] shall be unlawful for any person, firm, association, or corporation to engage in or attempt to engage in or to offer to engage in the practice of law, or to do or attempt to do or offer to do any act constituting the practice of law, except and to the extent that the person, firm, or association is licensed or authorized so to do by an appropriate court, agency, or office or by a statute of the State or of the United States.

(b) 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 persons as to their legal rights or responsibilities or to those of others;

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

(3) Representing a person before an adjudicative body, including, but not limited to, preparing or filing documents or conducting discovery; or

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

(c) Whether or not they constitute the practice of law, the following activities are permitted without regard to subsection (a):

(1) Pro se representation;

(2) Serving as a mediator, arbitrator, conciliator or facilitator;

(3) Providing services under the supervision of a lawyer in compliance with the Hawaii Rules of Professional Conduct; and

(4) Publishing legal self-help books or generic form documents.

(d) For purposes of this section, the following definitions shall apply:

"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.

"Person" includes the plural as well as the singular and denotes an individual or any legal or commercial entity.

"Adjudicative body" includes a court, a mediator, an arbitrator or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.

(e) Nothing in sections 605-14 to 605-17 [contained] shall be construed to prohibit the preparation or use by any party to a transaction of any legal or business form or document used in the transaction. "

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:

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