[A resurgence in unauthorized practice complaints is raising questions about whether the court of public opinion will judge lawyers as guardians of the common good or protectors of their own turf.]

A group of parents from Delaware turned up on Marilyn Arons' New Jersey doorstep a few years ago searching for someone to help them in their battle with their local school board over special-needs children.

The parents were unable to find a lawyer to help get the specialized instruction programs guaranteed to them under federal law, Arons recalls. So they drove by the carload to Arons' home in Teaneck and begged for help.

As founder of the Parent Information Center, Arons has spent more than 20 years counseling parents on their legal rights and representing them at administrative hearings, often facing off against heavily lawyered school boards. Most of the parents cannot afford an attorney. Those who can seldom are able to find one with the time or expertise to take their case.

Arons is not a lawyer, but, she says, that should not matter. "The practice of law is really the implementation of justice. Why do you have to be an attorney to implement justice?"

The state of Delaware thinks differently. Prompted by complaints from school boards, the state's Office of Disciplinary Counsel slapped Arons and a colleague with charges of unauthorized practice of law about two years ago.

"We're looking at this from the issue of protecting the public," says Mary M. Johnston, chief disciplinary counsel. If nonlawyers mishan-dle cases, clients have no recourse as they do if a lawyer commits malpractice, she says. "This is a totally unregulated arena. There is no accountability."

Arons believes the charges have more to do with politics than with a genuine concern about the practice of law. "I don't buy the malpractice argument," she says. "I've become a lightning rod for terror in the legal profession over affordable competition."

The case, which is scheduled to be heard this month, is among an increasing number of actions claiming nonlawyers are engaging in the unauthorized practice of law.

Unlike traditional claims targeting individuals or businesses that furtively try to pass themselves off as providers of legal counsel, many of those accused now are like Arons, providing a service that lawyers often don't have the time or the inclination to offer.

Besides parent advocates, un-authorized practice charges have recently been filed against publishers of do-it-yourself legal books and computer software, paralegals, real estate and mortgage brokers--even a funeral home director.

And more often unauthorized practice claims are being brought not by aggrieved clients but by defendants in the cases or lawyers claiming an interest in accountability and consumer protection.

That trend has led critics--lawyers and nonlawyers alike--to warn that the aggressive pursuit of such claims may boomerang and end up damaging the public's perception of the profession.

"If we overuse unauthorized practice, the appearance is that all we're trying to do is protect our monopoly. There is a real danger there. It fosters distrust," says Phil Shuey, co-chair of the ABA Law Practice Management Section's Futurist Committee. "The bar should choose challenges carefully and focus on whether the public is being misled."

New Life for an Old Issue

Unauthorized practice laws have been around in various forms since the 1920s, and state panels have been pursuing violators at least that long. Enforcement dipped in the 1970s, according to a 1995 report of the ABA Commission on Non-Lawyer Activity in Law-Related Situations.

But in recent years there has been a revival of sorts, and states have also strengthened their regulations.

In January, Judge Barefoot Sanders of the U.S. District Court for the Northern District of Texas ruled that Iowa-based Parsons Technology, which manufactures Quicken Family Lawyer, engaged in the unauthorized practice of law in Texas by selling the popular interactive software there.

The Quicken program allows users to create wills, employment contracts and health-related legal documents by answering questions posed in the software program.

Quicken Family Lawyer "goes beyond merely instructing someone on how to fill in a blank form. While no single one of qfl's acts, in and of itself, may constitute the practice of law, taken as a whole, Parsons ... has gone beyond publishing a sample form book with instructions, and has ventured into the unauthorized practice of law," Sanders wrote in his Jan. 22 decision.

Quicken isn't alone. The Texas Unauthorized Practice of Law Committee is also alleging that Berkeley, Calif.-based Nolo Press, which has published legal books and software since the early 1970s, is also practicing law without a license. The case is pending.

But critics of those actions say that do-it-yourself software merely helps consumers unable or unwilling to hire lawyers, and that limiting such options is not in the best interests of the public or lawyers.

The cases "are emblematic of the long-standing hostility the legal profession has had toward nonlawyers," says David Vladeck, a pub-lic interest lawyer representing Arons. "The legal profession has always jealously guarded its monopoly. This is just another example."

And that is exactly how the public has responded to the Quicken case, says Eric Stone, a vice president of The Learning Co., the parent company of Parsons Technology, which is appealing its case. "The reaction in the press and from individual consumers has been over-whelmingly positive," Stone says.

"They genuinely believe the suit was brought about by lawyers protecting themselves. That's not something we're suggesting. It's what we've heard."

Say What You Mean

James Turner, executive director of HALT, a self-described legal reform organization based in Washington, D.C., says the legal profession needs to define what it means to practice law in a manner that serves the public interest.

"The profession is ill-served when protections designed to protect consumers are misused," Turner says. "My bright-line recommendation is that you require a dissatisfied consumer or complaining witness [before] investigating a claim."

But that is not what is happening with recent cases. "No complaining witnesses have come forward. The people [who filed the complaints] are in an adversarial role or are attorneys under the mistaken belief they are losing business. That is not the way unauthorized practice is supposed to work."

The aba's Shuey agrees that the profession ought to redefine what it means to practice law. The alternative--aggressively pursuing unauthorized practice cases--is a losing choice.

"The reality is we're trying to practice law by applying a lot of procedures and ethical rules to a world that's changing. I don't think it is wise to sit back and say, 'Shucks, we don't like it.' But we do have to look at the environment and define ourselves in terms of competition and public needs," Shuey says. "If we can't find a way to differentiate what we do from others, maybe we should get out of the business."

Shuey recognizes that computer software use may prompt legitimate concerns about consumer protection, but he believes there are other ways to address those concerns. In the long run, he says, professional service or new technology that provides easy, inexpensive access to the law will win out over more traditional, costlier methods.

Competitive Jitters

A number of analysts trace the recent spate of unauthorized practice cases to frustration and fear over increased competition from businesses whose services traditionally were distinct from law practice--specifically, accounting firms. While accountants historically stuck to tax matters, today they are hiring lawyers as consultants to broaden their services.

In 1997, the Texas Unauthorized Practice of Law Committee initiated an investigation against the firm of Arthur Andersen. The investigation centered around whether the firm was practicing law illegally by preparing legal documents, forming and registering companies, and preparing legal tax opinions on be- half of its clients. (See "Squeeze Play," February 1998 ABA Journal, page 42.)

The case was dismissed last July, but the battle didn't end there. In August, ABA President Philip Anderson appoint-ed a Commission on Multi-Disciplinary Practice to review the relationship among accounting firms, their practices, and the role of the lawyers working for the firms. The preliminary report of the commission is expected this month.

The multidisciplinary practice debate illustrates the legal profession's focus on trying to maintain the status quo rather than on finding ways to change with the times, says Stephan Tucker, chair of the ABA Taxation Section who testified before the commission.

"I think the profession is at risk. We have to put ourselves on the playing field," Tucker says. "Lawyers have to recognize the world is changing and will change more rapidly. We don't have a choice. We work with what everyone else demands."

Deborah Arron, a legal consultant and author, agrees. She says lawyers should learn from accountants rather than try to stop them.

"Lawyers need to be figuring out what people will pay for and tailor themselves to that," says Arron, author of Running From the Law , a book about why lawyers are leaving the profession. "That is what accounting firms have done. That is why they are so smart."

Plan That Went Astray

Curiously, the ABA addressed some of the issues raised by the cases of unauthorized practice of law four years ago when then-president George E. Bushnell commissioned a panel to make recommendations regarding nonlawyer practice. The report was sent to a committee of the Board of Governors but was never presented to the House of Delegates. Its recommendations were never implemented.

"It was an excellent report," says Vladeck, Arons' attorney. "The report cries out for something to be done, and it has been given the deep freeze."

Among the recommendations: expanding the permissible activities assigned to traditional paralegals so long as they remain accountable to lawyers, considering the possibility of nonlawyer representation of individuals in state administrative proceedings, examining ethics rules and policies to ensure they promote the delivery of affordable services and access to justice, and permitting nonlawyers to provide assistance and representation as allowed under statute or local rules so long as they are subject to review by the proper authorities.

Herbert Rosenthal, former executive director of the California State Bar Association and chair of the 1995 ABA nonlawyer activity commission, says he was disappointed but not surprised the recommendations in the report were never acted on.

"The report is neither inflammatory nor threatening, yet there were those who perceived it was and that it could have a potential negative impact," Rosenthal says.

Unfortunately, much of the report that was ignored remains applicable in the recent cases, he says.

"We offered an approach on how to analyze unauthorized practice of law situations and to determine when it applies," he says. "We had a whole set of standards."

The analysis considers issues such as the risk to the consumer, the skill of the nonlawyer, and a balance of the benefits and risk.

"There are well-meaning regulators out there who really do believe consumers need to be protected," Rosenthal says. But before taking action, "People should really evaluate the facts."

Of all the unauthorized practice cases, Arons' is probably the most sympathetic. Since she is a highly regarded expert in special education, no one ever has questioned her competence and credibility in repre-senting parents of disabled children.

The Delaware state disciplinary board acknowledges that few, if any, lawyers are available to represent Arons' clients in these cases, which require extensive time and knowledge of a complicated subject in which there is little money to be made. The state has stipulated that most parents would have to attend the administrative hearings alone if Arons and her organization were not available to represent them.

"The facts are very stark," says Vladeck. "They say, but for the assistance of a nonlawyer advocate, none of the parents would have challenged the school board."

But Johnston, the Delaware disciplinary counsel, says the Arons case deals with a narrow legal issue involving whether the federal Individuals with Disabilities Education Act allows representation by nonlawyers. If so, it pre-empts Delaware law requiring individuals offering legal advice to be licensed by the state.

Johnston concedes that none of Arons' clients complained about her representation, and she acknowledges Arons' expertise in special education. Still, Johnston says, it is the legal question, not Arons' competency, that is at issue.

"We don't think her qualifications are relevant. We have to look at this issue as if it relates to any [layperson]," she says.

Arons says she believes the state of Delaware would be better served by making sure that nonlawyers have the proper qualifications and supervision. The Parent Information Center, she notes, has a nationally recognized training program. She says her case ultimately will open doors for those trying to provide low-cost access.

Turner of HALT agrees. "Unauthorized practice of law should mean saying you are a lawyer when you are not," he says. "So long as there is full disclosure, clients in the 21st century will be sophisticated enough to take care of themselves."

Ultimately, Arons warns that if the legal profession doesn't respond to the changes, "There is absolutely going to be a backlash for lawyers. It may well be a death knell for the law profession as we know it."