Hawaii Attempts to Define the Practice of Law

Proposal could affect any nonlawyer who prepares documents for the public.

May/June, 2008

The Hawaii Supreme Court is reviewing public comments on a proposal it set forth in October 2007 to define the practice of law. The proposal under consideration is in the form of an addition to the Hawaii Supreme Court Rules and defines the practice of law as the "giving of legal advice or legal assistance to another person." The definition includes, but is not limited to, "giving advice or counsel to another person about the person's legal rights and obligations or the legal rights and obligations of others." Several exceptions and exclusions to the definition were included in the proposed rule, including the performance of services as a paralegal under the supervision of a judge, justice or member of the bar.

In essence, the proposal would cause businesses that provide documents for do-it-yourself court filings to close, and prevent any nonlawyer from assisting others in completing legal documents. Conviction for the unauthorized practice of law in Hawaii is a misdemeanor punishable by up to one year in jail and a $2,000 fine.

The Hawaii State Bar Association first sent a proposed rule to the Hawaii Supreme Court in July 2007. After review, the Hawaii Supreme Court proposed its version of the rule in October 2007, posting that version on its Web site and requesting public comment through Jan. 25.

On Jan. 25, the HSBA asked the Hawaii Supreme Court for additional time to submit its response to the court's proposed rule, citing numerous comments and questions it had received about the rule, and indicating that it wanted adequate time to review and possibly develop changes to the proposed rule. The time for the HSBA to respond was extended until March 28.

Recognizing the concerns expressed by other professionals, including Hawaii's realtors and certified public accountants, HSBA President Jeffrey Sia sent a letter to the Hawaii Supreme Court on Feb. 29, requesting another extension "for comment by the HSBA on the proposed rule" and asking the court to share any other comments about the proposed rule that it received. In the letter, Sia reiterated the bar's concern that bad and improper legal advice by untrained, unlicensed and unregulated individuals can result in the loss of legal rights or opportunities, which is the reason the bar association "has developed and recommended a rule to define the 'practice of law' as no such definition currently exists." However, Sia also acknowledged the concerns the proposal received from various professional groups during the comment period, stating in the letter, "It was not the HSBA's intention or goal to deprive any professional group or any person of their right to conduct and handle matters they legally areentitled to do by law. ..."

If the Hawaii Supreme Court adopts the language in its current form, business owners such as Betty Marais would directly be impacted. Marais owns Legal-Ez, a legal document preparation service in Honolulu that provides affordable legal documents to about 20 to 30 customers each month. "I help people to help themselves," Marais said. "They come to me with their needs and they know what they want. I then prepare the documents based upon the information they provide to me. People save hundreds, if not thousands, of dollars utilizing my services."

Some states already have adopted legislation that regulates, rather than prohibits, nonlawyers who perform legal-related services for the public.

Marais, who already is bonded and has 25 years of experience, agreed. "I would welcome that same regulation process here in Hawaii," she said. In the meantime, Marais said she is prepared to do whatever it takes to keep her business open. "I have decided that being a legal document preparer is a valuable and necessary community service to the people that I help," Marais said. "I will fight to stay in business and to keep providing my services to the people of Hawaii who need [them] and want [them]."

The Hawaii Supreme Court granted the HSBA's Feb. 29 request and extended the time for the bar's response to May 30. After reviewing the public comments submitted, the court will have the option to reject the proposal, adopt it or adopt a modified version of the original language. If the court adopts the proposal, it could take effect as early as July 1.