I recently heard a story about a mediator who is NOT an attorney to be drafting the joint petition and final decree for parties after he mediated their divorce. As opposed to directing them to an attorney or the pro se forms to fill out themselves, this non-attorney was drafting the final decree along with a joint petition that will be filed with the court.
Is this appropriate? Is this the unauthorized practice of law? What are the consequences?
While it is not inconceivable that a non-lawyer can competently draft a decree, the odds are long. The non-attorneys and inexperienced attorneys who are drafting documents and think to themselves, “This isn’t that difficult,” are wrong. What is worse, these non-attorneys do not know that what they are doing is difficult. What may be seen as the old guard’s slow, silly, smoke-and-mirrors practice of law is in fact the value-adding traits of the skilled and experienced legal trade.
Some people suggest that the laws against the unlicensed practice of law protect the monopoly on legal services. They say but for these laws the hourly rate for legal services would not be so high. Nonetheless these laws exist to protect the consumer: the consumers of these services are SOL if the non-attorney drafted decree is wrong, as non-lawyers do not have malpractice insurance nor are they closely monitored and regulated.
Other critics cite non-attorney legal work as an indication of the crisis we have in Minnesota family law. They cite that Minnesota’s filing fees are some of the highest in the nation (In Arizona it costs less than $70 to file for divorce). Pile on the expense of hiring an attorney (It costs at least $2,000 to get a divorce done when the parties have an agreement), and they believe that we have a crisis. While it may be a crisis, endorsing non-attorney legal work isn’t the answer; such would just make for a different but more damning crisis within the legal services sector.
The unlicensed practice of law (or some derivation thereof) will always happen because everyone is first and foremost inclined to “save a buck”. The age-old warning, Caveat emptor (buyer beware), should come to mind, as we should have sorrow for these customers of these non-attorneys. Fortunately competent lawyers will still be there to clean up the mess, and to do so they will get paid well (I recall post-divorce motions that cost my client 10 times the $500 her husband and her spent 2 years prior on the paralegal service to get them divorced).
The reality is that anyone who is smart enough to understand the dynamics of family law to get the forms checked right and who also understands the risks of giving advice, does not do it for cheap. Experienced, licensed legal counsel offers the protection of malpractice coverage, the years of experience, and the competencies of frequent discussions with colleagues and ongoing CLE commitments. Legal professionals with these qualifications stand behind our work.