The Birth of the Movement to Prohibit the Unauthorized Practice of Law
70 Pages Posted: 5 Mar 2018 Last revised: 17 Aug 2018
Date Written: February 23, 2018
Drawing on original historical research, this article provides the most comprehensive view to date of the birth of the modern movement to prohibit the unauthorized practice of law. Focusing on the work of bar associations in Illinois and New York in the late 1800s and early 1900s, this article chronicles how newly formed bar associations began to curb the unauthorized practice of law. Their efforts eventually led to a well-established state constitutional law principle that state courts, not state legislatures, have the power to define the practice of law and who can practice law. This power currently has a significant impact on exploring alternative ways to increase access to justice. Unlike other areas, such as health care, state legislatures cannot create new categories of licensed professionals to provide legal services in order to increase access to legal services. At the time that bar associations began to address the unauthorized practice of law, this exclusive power of state courts was not well-established. In fact, as the research in this article demonstrates, early bar associations initially saw state legislatures as appropriate partners to define the practice of law and help them curb the unauthorized practice of law. The exclusion of legislatures came later. Examining this history raises the question of whether the exclusion of legislatures is mandated by separation of powers, or whether they were excluded because, pragmatically, courts were a better partner for promoting lawyers’ self-interests. If the latter, then the current power of the state courts can and may become an artifact of history.
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