In the Pre-Renascence era, the practice of medicine became an accepted and recognized profession. Many doctors realized that midwives and healers were taking a big chunk of their bread and butter. Midwives were draining doctors financially as the two classes were small and competed. The doctors, though competitors amongst themselves, decided that they should become united. They decided fight and act for their survival as doctors. So they went to the Catholic Church and accused the midwives and healers of being witches that had pacts with the Devil. Their movement worked. Doctor succeeded in putting the midwives out of business. The profession called medicine flourished.
On the other hand, the practice of law follows an adversarial system that lawsuits truly like paper wars. Of course, a civilized “white shoe” war. Be that as it may, lawyers are not only hostile to each other when they are handling cases against each other, but also when they are on the same side. Suppose two lawyers practice immigration law. They are competitors. Nothing wrong about that. Fair competition is healthy. However, the share of information amongst lawyers is much harder. For example, exchange of information amongst doctors who have been united essentially since the Middle-Ages. Science is passed from one doctor to another with pleasure. Back to the example of the two immigration lawyers. These two immigration lawyers most likely will bad mouth each other, steal clients from each other and use any ethical (sometimes unethical) and legal means in order to undermine the other colleague.
I used the particular example of immigration lawyers intentionally. Most are familiar with the infamous notaries that practice immigration law and divorces without a degree or a license of any kind. Sometimes they are called “notarios” a Spanish word that only adds to confuse potential immigration clients especially from Latin America because a “notario” in Latin America is the equivalent of a lawyer, but a notary in the United States is a mere certifier (or verifier) of signatures. Therefore, the unauthorized practice of law (“UPL”) and the “notario” business is thriving. Meanwhile, the legal profession is being hurt. To the lawyer the “notario” is the witch that should be hunted. Needless to say, I am not suggesting that lawyers should unite and burn all “notarios” at the stake as in the Middle-Ages.
However, lawyers tend to be ultra-formalistic. If they do meet to discuss problems related to unauthorized practice law or “notarios” they speak in lengths, relate to the statistics of the harm being done by notario fraud, speak of Ethics and morals. However, in the end, little is accomplished. Most lawyers are too busy to care. Others do not care. In addition, law form small political groups that hate each other and care more about the pedigree of the speaker than about what is being spoken. For example, a lawyer is a partner in a big law firm will speak about a theme and be praised for it. Most lawyers will agree with him whatever the subject because he has achieved some type of professional recognition and due to his knowledge. In the end, few actions will be taken.
Recently, in New Jersey, the crime of unauthorized practice of law was approved to become a crime of a higher degree. This accomplished absolutely nothing. This will not deter anyone. A practice can only be deterred if it is enforced. To be enforced, a law needs incentives. The incentives are mostly pecuniary. The law hits the offender where it hurts: the pockets. For example, laws which the punishment is tied up with steep fines and revocation of licenses tend to be enforced. These laws generate income to the municipality or the state and the goal of the law is generally accomplished. Otherwise, the law is on the books and is rarely enforced. For example, the use of air fresheners dangling from the rearview mirror is a civil infraction due to obstruction, but almost nobody knows about it because the fine is merely $50. Parking tickets generate more money than that. I have seldom met anyone who never received a parking ticket. The law works because the court makes money. There are quotas for tickets given. Some may criticize it, but the law is enforced.
The unauthorized practice of law under N.J.S.A. 2C:21-22 does not have any type of punishment via fines. It is just a crime of the third degree. It does not even address jail, though it address restitution if the client was “harmed.” It is the textbook example of a law gone bad, written bad, and not enforceable. Of course, in extreme cases it has been generally associated with egregious cases of fraud. However, the routine UPL will not be punished and will continue to hurt lawyers financially. Lawyers who devoted years of their lives in law school, passing the bar exam and the developing their craft. I know for a fact that some “notarios” charge more than lawyers and have more clients than some lawyers would wish to have. Thus, the legal profession needs to heal itself from this wound, which is truly more like a chronic illness which has the cure but the patient refuses to take the medicine.
Most attorneys I know are able to solve complex problems, but on a personal level are powerless to solve their own problems. They lose objectivity. I think that uniting lawyers against what harms their profession is pretty much like that lawyer who solves everyone’s problems, but his/her own. There is much talk and no action. There is a fervent hope that the class (as a whole) will unite and act to protect itself. There is a wish that the law profession regains their once reputable and admired position. Until the sixties, attorneys were seen as highly reputable and above suspicion. It was a profession that one could be proud of. Nowadays, the bar (no pun intended) has become much lower. This is, in part, because lawyer are letting the work which only trusted to be done by them slip away and be done by others without a single credential. The problem is not that there too many lawyers.
Moreover, the legal profession is one of the few that self regulates against itself, not pro. It also over-self regulates. For example, it is always finding a way to punish attorney advertisement or the way attorneys displays their recognition awards. However, the self-regulating authorities have done nothing to criminalize the advertisement of “notarios” who blatantly practice law without having a license and therefore are outside their jurisdiction to regulate. Talk about a loophole. That is more like a rabbit hole. I can firmly debate that if there is a profession that has sabotaged itself the once majestic occupation of being a lawyer. The legal profession should understand that, in our modern age, it devours itself like a self-cannibal. The profession must unite and protect itself not in appearance, but in existence. There lays two crucial distinctions that may mean the beginning or the end of some activity that, more often than not, brings justice to someone.
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