Sunday, April 13, 2014

Unauthorized practice of self-help law

It's been nearly fifty years since the New York bar association sought to stop Norman Dacey from distributing his legal self-help book How To Avoid Probate. Dacey was generally contemptuous of lawyers and the legal system and he particularly disdained the probate system. Dacey's advice was to avoid the probate system at all costs, inter vivos trusts were an effective method for that purpose and his book was a detailed form book with instructions on setting up an inter vivos trust without the assistance of a lawyer.

Norman Dacey was not a trained lawyer, he was not admitted to practice law in the State of New York and he sold a lot of books there. When the New York bar sought to stop Dacey on the ground that his book amounted to legal advice from a non-lawyer, and it was therefore the unauthorized practice of law and illegal, the New York bar at first succeeded. New York County Lawyers' Association v. Dacey, 54 Misc. 2d 564, 282 NYS 2d 985, NY: Supreme Court (1967). It seems that Dacey's business went beyond the mere publication and sale of a legal self-help book. "Dacey operated in such manner that: 'as a direct consequence of his preparation of the Dacey trust arrangement, Dacey virtually assured himself of what amounted to a 6 percent sales commission on almost the entire assets of each estate . . . . ' ".

Upon appeal, the New York bar again prevailed . . . initially. In the Matter of New York County Lawyers' Association v. Dacey, 28 AD 2d 161, 283 NYS 2d 984 - NY: Appellate Div., 1st Dept., 1967, in a four-to-one decision, with Justice Stevens dissenting. Within two months the court simply reversed itself without elaboration and Justice Stevens' dissenting opinion became the majority opinion. In the Matter of New York County Lawyers' Association v. Dacey, 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459 (1967). The court held that Dacey's legal self-help book How To Avoid Probate was not legal advice and its publication was not subject to judicial control as the practice of law. Dacey's publishing activity was protected Free Speech.

The Dacey decision has since become the leading case on the subject of legal self-help publishing and the unauthorized practice of law, and it has been followed in many other jurisdictions.Dacey's book is still in print and it is still available for purchase in bookstores and online across the country, even in Kentucky. The Dacey decision has helped spawn an entire industry of legal self-help publications.

Kentucky courts have not addressed this legal self-help issue directly. The Kentucky Court of Appeals has quoted form the Dacey decision, with seeming approval, in a slightly different context. Edwards v. Land, Ky. App., 851 SW 2d 484 (1992)
'Without the establishment of an attorney-client relationship, an attorney cannot be said to render legal advice by simply providing a party with a statutorily required statement of the law. In such a situation there would not exist "that relation of confidence and trust so necessary to the status of attorney and client. This is the essential of legal practice — the representation and the advising of a particular person in a particular situation." ' [emphasis added]

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