5.02. History of Unauthorized Practice of Law

The history of the unauthorized practice of law is interesting.  During the colonial period of American history, there was a thought that society should function without lawyers – that every person could be their own lawyer.  In fact, in the colonial period, some colonies excluded lawyers from court (Virginia) and some had no lawyers (South Carolina’s first lawyer arrived in 1699).  Perhaps this quote from Pennsylvania sums up the sentiment at the time:  “They have no lawyers. Everyone is to tell his own case, or some friend for him . . . . ‘Tis a happy country.”[1] 

By the mid-1700’s lawyers began to professionalize as issues facing the citizenry became more complex.  Over the next 200 years there was an ebb and flow of enforcement of “practice of law” as something reserved to lawyers.  The current era and understanding came about during and after the Great Depression.  In 1930, the American Bar Association created the first unauthorized practice of law committee – establishing a model for states to follow.  States followed the ABA’s lead and created state level committees that actively sought to enjoin those practicing law without a license.  In the 1970’s courts began to scrutinize the monopoly activity of organizations such as bar associations (based on anti-trust concerns) and the rate of enforcement decreased.  Today the unauthorized practice committees continue to exist but tend to act only when there is an egregious example or when it is brought to their attention.

[1] Lawrence M. Friedman, A History of American Law 53 (2005).