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StarBulletin.com

UPL rule a collaborative effort for the good of Hawaii public


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POSTED: Thursday, January 29, 2009

Taking easy shots at the legal profession might be harmless enough in late-night comedy, but it does a disservice to the public when it misrepresents a serious effort by the Hawaii State Bar Association to protect the interests of ordinary citizens. The HSBA is a founding participant and supporter of the Access to Justice Commission and proudly provides pro bono legal services to those in need through the organization and its membership. We are also acutely aware of situations when people sometimes put themselves at risk by relying on legal advice from non-lawyers or lawyers not licensed in Hawaii. They are potentially vulnerable to damage or harm as a result of such services. The proposed rule seeks a proper balance in helping to protect consumers of legal services and specifically providing for the activities conducted by accountants, insurance companies, real estate agents and paralegals, just to mention those referenced in your Jan. 28 editorial.

Your editorial wrongly and carelessly asserted that the adoption of the rule proposed by the HSBA and recently posted for public comment by the Hawaii Supreme Court could outlaw the activities of accountants, insurance companies, real estate agents and paralegals. A simple reading of the proposed UPL reveals 18 exceptions and exclusions specifically permitting and protecting activities of these professionals and others. Exception No. 6 permits making legal forms available to the general public or publishing legal self-help information. Exception No. 9 permits services as a paralegal. Exception No. 10 permits preparation of tax returns and performing any other legally authorized services as a CPA, public accountant, bookkeeper or tax preparer, including financial planning. Exception No. 11 permits licensed real estate brokers or salespeople to perform all the activities they can do under Hawaii law, including preparing real estate sales agreements, providing or completing sales, lease, or rental related forms, giving information and advice relating to sale, lease, or rental of real estate, and negotiating for clients relative to real estate matters. Exception No. 12 permits insurance companies, including agents and claims representatives, to perform or provide all authorized services. Exception No. 17 permits services by anyone that are otherwise authorized by statute or regulation in this state. Section (f) specifically permits anyone to provide information of a general nature about the law and legal procedures to the public.

Throughout last year, the HSBA met and worked with representatives of accountants, insurance companies, real estate agents, paralegals, automobile dealers, employers, and others in the drafting of the rule. Their input and comment in the process were sought and received. Language suggested by the FTC regarding the definition of “;practice of law”; was adopted and is part of the rule. The rule currently under consideration is the result of this collaborative process and hours of legal research, discussions and drafting. It was not adopted from the “;model”; provision by the American Bar Association that you mentioned in your editorial.

We invite the public and all interested parties to read what has been posted on the site of the Hawaii Supreme Court more carefully than the Star-Bulletin did in its rush to judgment. Go to http://www.courts.state.hi.us/ We are confident the public will appreciate that our collaborative effort yielded a thoughtful measure designed to serve the public good. We are equally confident they will not resort to the reflexive labeling and name-calling that the editorial unfortunately reached for in its well-meant but ill-informed effort to analyze the much needed UPL rule.

 

Jeffrey Sia is the outgoing President of the Hawaii State Bar Association. He submitted this opinion on behalf of the HSBA. Several members of the coalition that worked on the UPL rule including counsel for the Hawaii Association of Realtors, Robert G. Klein, and the Hawaii Employers Council have expressed support for the views expressed in this commentary.