An inquiry into whether a California legal self-help publisher is illegally practicing law in Texas is focusing attention on the Unauthorized Practice of Law Committee, a powerful group of volunteer attorneys that operates with few written procedures and little oversight.

While the committee is used to dealing with small publishers and individuals who may be impersonating attorneys, it has poked a giant in Berkeley-based Nolo Press, the nation's largest publisher of self-help legal books and software with $ 9 million in annual sales.

Steve Elias, a lawyer who serves as associate publisher of Nolo Press, is promising to bring in a nationally prominent First Amendment specialist to argue Nolo's case at an Aug. 20 hearing before a Dallas subcommittee of the UPLC. But he also is questioning whether Nolo will get due process, calling the UPLC process "Kafkaesque."

"The request for Nolo to appear in Texas to answer the state's UPL allegation contains no information about what our fundamental due process rights will be," Elias says. "For example, do we even have the right to present testimony of constitutional law experts to the point that our publications are protected by the First Amendment? Will the hearing be open to the press and public, or will it be conducted in secret?

"What, exactly, is Nolo Press charged with?"

Elias has posed these and other questions in a letter to Norman Rogers, a Thompson & Knight partner who is investigating Nolo for the UPLC. The correspondence between the UPLC and Nolo is available on Nolo's Web site (www.nolo.com).

"The odd thing about it, and I may seem hysterical, but I don't really know what they have in mind," says Elias.

Elias also is concerned about who might ultimately decide whether Nolo's materials should be banned in Texas, because letters from the UPLC come on Texas Supreme Court letterhead.

"What happens if we come down there and end up getting sued?" asks Elias. "Will the Supreme Court sit as the final arbiter?"

The UPLC is a nine-member committee appointed by the Supreme Court. Other than three public members required by law, it is made up of volunteer attorneys and judges. The committee is authorized by statute in subchapter G of Government Code Chapter 81 (the State Bar Act) to file suits to eliminate the unauthorized practice of law.

The UPLC is not required to provide written reports of its activities. The chairman does give an annual oral report to the Supreme Court, says Texas Supreme Court Chief Justice Thomas R. Phillips.

It does much of its work through subcommittees set up along the lines of the districts from which State Bar directors are elected. The subcommittees have the power to initiate investigations and recommend whether suits should be filed. The UPLC meets twice a year and makes the final decisions on litigation and other enforcement activity.

Phillips was surprised to learn that the UPLC uses Supreme Court letterhead. He referred questions about the committee's operations to outgoing Chairman James Blume, a name partner in Dallas' Blume & Stoddard, who did not return two phone calls. The incoming chair, Harrison County Judge J. Rodney Gilstrap, also did not return calls.

Longtime UPLC member James N. Rader of Austin did provide some details about the committee and a copy of its rules as adopted by the Supreme Court in November 1980. The rules state that the committee "shall establish from time to time rules and procedures governing the activities of the committee" by a vote of two-thirds of the committee members.

But it's unclear whether the committee has adopted such internal rules. Rader says he has some rules that were "worked up a long time ago" but is not sure whether they ever were enacted by the committee. Because he is unclear about their status, Rader says he could not provide a copy.

The rules adopted by the Supreme Court give the committee the power to subpoena witnesses and tangible evidence. The rules also make it clear that the committee shall not be required to post any bond upon the granting of a temporary restraining order, temporary injunction or permanent injunction, and that committee members and anyone designated by the committee to pursue a case shall be immune from suit.

The UPLC can go to court to enjoin a party from practicing law and can seek contempt penalties if someone fails to comply.

Rader, a senior attorney with the Lower Colorado River Authority, says the public is not invited to subcommittee or committee hearings. He says testimony taken in the hearings is sworn but is not always taken down by a court reporter.

Rader, who has served on the UPLC since 1992 and prior to that was chairman of the Austin subcommittee, says cases generally fall into one of three categories. The classic case of someone opening an office and pretending to be a lawyer has fallen off since the Legislature made that a criminal offense several years ago, Rader says. He says a second category involves people who set themselves up as independent paralegals and try to do legal work on divorces or adoptions, while the third category involves so-called typing services for wills and other documents that may cross the line if the typists give legal advice.

There can be serious consequences in using the services of a nonlawyer, Rader says. Many immigrants who have used nonlawyers have found themselves deported, he says.

"More and more cases are being brought to our attention," says Rader.

The UPLC also is involved in a high-profile investigation of accounting giant Arthur Andersen. [See "Complaint Fuels Debate About Accountants' Legal Role," Texas Lawyer, Oct. 20, 1997, page 6.]

The State Bar is charged with funding the UPLC, which was budgeted $ 71,569 this fiscal year. But the Bar denies any responsibility for the committee. Bar spokeswoman Laureen Chernow says the committee operates under the auspices of the Supreme Court, which has the inherent authority to regulate the practice of law.

James Turner, the executive director of HALT, a Washington, D.C.-based legal reform organization, says he thinks the Supreme Court and its committee are being used as a front for the antitrust tradition of the organized bar.

"It's not a legitimate function for the highest court in the state to be lending its name to," says Turner of UPLC's policing of nonlawyers.

Over-the-Counter

Nolo initially learned it was under scrutiny in a letter dated last June 13 from Houston's Jeffrey A. Lehmann, chairman of a UPLC Houston subcommitee. The letter stated that the company's "Living Trust Maker" software and user's guide "represent that your forms as well as the suggested information to be inserted will properly affect legal rights." Nolo was asked to provide the names, addresses and states of licensure of any attorneys who contributed to the software and user's guide.

On March 13, Nolo received a letter from Rogers, stating that an investigation into unauthorized practice of law by Nolo had been transferred to the Dallas subcommittee. The letter says that a representative of Nolo Press will be invited into the hearing room for an "informal and normally brief" hearing. Nolo may be represented by a lawyer, but it is not required, states Rogers.

Elias says Nolo, which has been in business for 27 years, is one of the most responsible publishers of self-help materials. Its products are sold in major chain bookstores and computer stores nationwide.

Elias says the software includes briefcase icons that tell the purchaser when the situation might be beyond self-help. He says the company's money-back guarantee is designed to allow people to return the products if they decide they need to consult a lawyer.

"We're going after the lowest common denominator," says Elias, who compares Nolo's services to over-the-counter medicine.

Elias says Texas may be alone among states in going after publishers. So don't look for a prominent Texas First Amendment lawyer to represent Nolo, Elias says.

"I don't think we trust Texas lawyers to fully represent our interest in Texas," he says.

Nolo no doubt will be better represented than the last California publisher to fight the UPLC. Vijay Fadia represented himself in the UPLC's efforts to ban his $ 24.95 will manual and failed to present any evidence that his manual was protected by the First Amendment.

In Fadia v. UPLC, 830 S.W.2d 162, the 5th Court of Appeals in Dallas in 1992 concluded that publishing, marketing and distribution of a will manual by a nonlawyer constituted unauthorized practice of law.

A New York appeals court in 1967 reached the opposite conclusion, however, finding that publication of a book by a nonlawyer on how to avoid probate could not constitutionally be prohibited under New York's unauthorized practice statute.

State Rep. Steve Wolens, D-Dallas, chairman of the State Affairs Committee and a frequent critic of the State Bar, says he opposes efforts to ban books and software.

"It's not a crime to read," says Wolens, a shareholder in Dallas' Baron & Budd. "The legal system does a better job if the public is better informed."

But Wolens does believe the materials should contain a caveat warning customers of the danger in proceeding without a lawyer.

Wolens says he wonders how the UPLC will grapple with the challenges posed by the Internet, where a Texan may be able to seek online legal advice from an attorney in another state.

"If they want to focus their attention on that, they could have a field day," he says.

Lawyers Protecting Lawyers

David Musslewhite stocks another publisher's self-help legal forms at Legal Grounds, his combination coffee shop and law office in Dallas. He says he tries to consult with people who want to buy the forms so he can make sure their legal needs are small.

"There are lots of areas of law practice that essentially can be form work," says Musslewhite, who wonders why the UPLC doesn't go after the Dallas Board of Realtors for providing real estate forms.

Musslewhite says he believes that one reason lawyers are held in such disdain by the public is because ordinary people have been priced out of the justice system.

"I really do encourage the Bar to come off its high horse just a little bit," he says.

Texas also may be bucking a trend aimed at the problem of helping the poorest citizens obtain access to the justice system. Legal Services Corporation President John McKay is encouraging increased access to self-help information to empower clients to advocate on their own behalf. Several Texas legal service agencies offer pro se divorce clinics.

Chief Justice Phillips says U.S. Attorney General Janet Reno has called for the broadening of authority of paralegals as a way to meet legal needs of the poor.

Maricopa County, Ariz., has a high-profile family law center that offers individuals advice on representing themselves.

Elias says if Texas really is concerned that its citizens are not getting good information, it should publish its own self-help materials.

"It's not about the courts protecting the public at all," says Elias. "It's about lawyers protecting lawyers."