FTC and Department of Justice Comment to Task Force to Define the Practice of Law in Massachusetts Concerning Draft Proposed Definition

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION 	DEPARTMENT OF J USTICE
Washington, DC 20580 	Washington, DC 20530
December 16, 2004
Denise Squillante, Esquire, Co-Chair
Lee J. Gartenberg, Esquire, Co-Chair
Task Force To Define The Practice
Of Law In Massachusetts
Massachusetts Bar Association
20 West Street
Boston, Massachusetts 	02111-1204
Re: 	Comments on Draft Proposed Definition
of the Practice of Law in Massachusetts
Dear Ms. Squillante, Mr. Gartenberg, and Members of the Task Force:
We are writing about your recent proposal to define the practice of law and enumerate
some exceptions. The proposed definition has been formulated by the Massachusetts Bar
Association's ("MBA") Task Force to Define the Practice of Law in Massachusetts. The
Department of Justice and Federal Trade Commission (“FTC”) are concerned that the proposal is
not in the best interest of consumers, as it would prevent non-lawyers from providing services in
competition with lawyers in situations where there is no clear demonstration that non-lawyer
services would actually harm consumers. For example, the definition has the potential to
discourage lay activities such as real estate agents explaining certain aspects of a home purchase
to consumers, accountants providing advice regarding tax filings, and the use of interactive self-
help legal software to produce simple legal documents. This would likely raise costs for
consumers and limit their choices. Because the proposed rule is likely to restrain competition
without providing any benefits to consumers, we recommend against adopting such a definition
of the practice of law. Antitrust laws and competition policy generally consider sweeping
restrictions on competition harmful to consumers and justified only by a showing that the
restriction is needed to prevent significant consumer injury.

1 Nat'l Soc’y of Prof'l Eng'rs v. United States, 435 U.S. 679, 695 (1978) (quoting Standard Oil Co. v. FTC,
340 U.S. 231, 248 (1951)); accord FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 423 (1990).
2 See, e.g., Nat'l Soc’y of Prof'l Eng'rs, 435 U.S. at 689; Goldfarb v. Virginia State Bar, 421 U.S. 773, 787
(1975); see also United States v. American Bar Ass'n, 934 F. Supp. 435 (D.D.C. 1996).
3 Professor Catherine J. Lanctot, Villanova University Law School, “Regulating the Provision of Legal
Services in Cyberspace,” remarks at the Federal Trade Commission Public Workshop on Possible Anticompetitive
Efforts to Restrict Competition on the Internet: Internet Legal Services (Oct. 9, 2002), available at
http://www.ftc.gov/opp/ecommerce/anticompetitive/panel/lanctot.pdf.
4 Letter from the Justice Department and the FTC to Unauthorized Practice of Law Committee, Indiana
State Bar Ass’n (October 1, 2003); letter from the Justice Department and the FTC to Standing Committee on the
Unlicensed Practice of Law, State Bar of Georgia (Mar. 20, 2003); letters from the Justice Department to Speaker of
the Rhode Island House of Representatives and to the President of the Rhode Island Senate, et al. (June 30, 2003 and
Mar. 28, 2003); letter from the Justice Department and the FTC to Task Force on the Model Definition of the
Practice of Law, American Bar Association (Dec. 20, 2002); letter from the Justice Department and the FTC to
Speaker of the Rhode Island House of Representatives, et al. (Mar. 29, 2002); letter from the Justice Department and
the FTC to President of the North Carolina State Bar (July 11, 2002); letter from the Justice Department and the
FTC to Ethics Committee of the North Carolina State Bar (Dec. 14, 2001); letter from the Justice Department to
Board of Governors of the Kentucky Bar Association (June 10, 1999 and Sept. 10, 1997), available at
(continued...)
2
The Interest and Experience of the U.S. Department
of Justice and the Federal Trade Commission
The Justice Department and the FTC are entrusted with enforcing the federal antitrust
laws. Both agencies work to promote free and unfettered competition in all sectors of the
American economy. The United States Supreme Court has observed that "ultimately
competition will produce not only lower prices, but also better goods and services. 'The heart of
our national economic policy long has been faith in the value of competition.'" 1 Competition
benefits consumers of both traditional manufacturing industries and professional services.2
Restraining competition, in turn, can force consumers to pay increased prices or to accept goods
and services of poorer quality.
The Justice Department and the FTC are concerned about increasing efforts to prevent
non-lawyers from competing with attorneys in providing certain services through the adoption of
excessively broad unauthorized practice of law rules and opinions by state courts and
legislatures. As Professor Catherine Lanctot has noted, "Lawyers historically have used the
unauthorized practice of law statutes to protect against perceived incursions by real estate agents,
bankers, insurance adjusters, and other groups that seemed to be providing legal services." 3 In
addressing these concerns, the Justice Department and the FTC encourage competition through
advocacy letters such as this one and amicus curiae briefs filed with state supreme courts.
Through these filings, the FTC and Justice Department have urged the American Bar
Association and the Indiana State Bar Association, as well as the states of Virginia, Rhode
Island, Kentucky, North Carolina, Georgia, West Virginia, and Ohio, to reject such restrictions
on competition between lawyers and non-lawyers.4 We recently submitted a letter in support of

4(...continued)
http://www.usdoj.gov/atr/public/comments/comments.htm; letter from the Justice Department and the FTC to
Supreme Court of Virginia (Jan. 3, 1997); letter from the Justice Department and the FTC to Virginia State Bar
(Sept. 20, 1996); Brief Amicus Curiae of the FTC in Cleveland Bar Association v. CompManagement, Inc., No. 04-
0817 (filed Aug. 3, 2004), available at http://www.ftc.gov/os/2004/08/040803amicusbriefclevbar.pdf; Brief Amicus
Curiae of the United States of America and the FTC in Lorrie McMahon v. Advanced Title Services Company of
West Virginia, No. 31706 (filed May 25, 2004), available at http://www.usdoj.gov/atr/cases/f203700/203790.htm
and http://www.ftc.gov/be/V040017.pdf; Brief Amicus Curiae of the United States of America and the FTC in On
Review of ULP Advisory Opinion 2003-2 (filed July 28, 2003), available at
http://www.ftc.gov/os/2003/07/georgiabrief.pdf and http://www.usdoj.gov/atr/cases/f201100/201197.htm; Brief
Amicus Curiae of the United States of America in Support of Movants Kentucky Land Title Ass'n et al. in Kentucky
Land Title Ass'n v. Kentucky Bar Ass'n, No. 2000-SC-000207-KB (Ky., filed Feb. 29, 2000), available at
http://www.usdoj.gov/atr/cases/f4400/4491.htm. The letters to the American Bar Association, Indiana, Rhode
Island, North Carolina, Georgia, and Virginia may be found on the FTC's web site, http://www.ftc.gov, and the
Department of Justice’s website, http://www.usdoj.gov/atr/public/comments/comments.htm.
5 Letter from the Justice Department and the FTC to Representative Paul Kujawski of the Massachusetts
House of Representatives (Oct. 6, 2004).
6 In United States v. Allen County Bar Association, the Justice Department obtained a judgment against a
bar association that had restrained title insurance companies from competing in the business of certifying title. The
bar association had adopted a resolution requiring lawyers' examinations of title abstracts and had induced banks and
others to require the lawyers' examinations of their real estate transactions. Civ. No. F-79-0042 (N.D. Ind. 1980). In
United States v. New York County Lawyers Association, the Justice Department obtained a court order prohibiting a
county bar association from restricting the trust and estate services that corporate fiduciaries could provide in
competition with attorneys. No. 80 Civ. 6129 (S.D.N.Y. 1981). See also United States v. Coffee County Bar Ass'n,
No. 80-112-S (M.D. Ala. 1980). In addition, the Justice Department has obtained injunctions against other
anticompetitive restrictions in professional associations' ethical codes and against other anticompetitive activities by
associations of lawyers. E.g., United States v. American Bar Ass'n, 934 F. Supp. 435 (D.D.C. 1996), modified, 135
F. Supp. 2d 28 (D.D.C. 2001); National Soc'y of Prof’l Eng’rs v. United States, 435 U.S 679 (1978); United States v.
American Institute of Architects, 1990-2 Trade Cas. (CCH) ¶ 69,256 (D.D.C. 1990); United States v. Soc'y of
Authors’ Representatives, 1982-83 Trade Cas. (CCH) ¶ 65,210 (S.D.N.Y. 1982).
3
legislation permitting real estate closing services to be performed by non-lawyers in
Massachusetts in response to a request by Representative Paul Kujawski of the Massachusetts
House of Representatives.5 Separately, the Department of Justice has obtained injunctions
prohibiting bar associations from unreasonably restraining competition from non-lawyers, since
this conduct violates the antitrust laws.6 Our ongoing efforts in this area have led us to submit
these comments.
The MBA Task Force's Proposed Rule Change
The MBA's Task Force has drafted a proposed definition of the practice of law. Section
(c) states that:
A person is presumed to be practicing law when engaging in any of the following
conduct on behalf of another:

4
(1) 	Giving advice or counsel to a person as to his or her legal rights or
responsibilities or those of others;
(2) 	Selecting, drafting, reviewing, recording, or completing legal
documents or agreements that affect the legal rights or
responsibilities of a person;
(3) 	Creating, conveying, evaluating, or terminating a person's legal
interest in real property;
(4) 	Representing a person before a tribunal, including, but not limited
to, preparing or filing documents or conducting discovery, or
appearing before such body; or
(5) 	Negotiating legal rights or responsibilities on behalf of a person.
Section (d) of the draft lists certain exceptions to the presumption:
Exceptions: The following are permitted as exceptions to the requirements of
Paragraph (a):
(1) 	Serving in a neutral non-adjudicative capacity as a mediator,
conciliator or facilitator, or in an adjudicative capacity under court
supervision;
(2) 	Affording advocacy assistance by non-lawyers through a
governmental entity, a qualified legal assistance organization, or a
not-for-profit entity, where no fee is charged, or as permitted by
G.L.c.209A;
(3) 	Participating in labor negotiations, arbitrations, or conciliations
arising under collective bargaining rights or agreements; and
(4) 	Participating in a regulatory or administrative proceeding pursuant
to the rules of the agency, where no fee is charged for such
participation.
We understand that the Task Force originally submitted its proposal to the MBA House of
Delegates last Spring and that the House referred the proposal back to the Task Force for further
review and consideration. The Task Force has proposed that (1) the House of Delegates adopt
the definition, and (2) the House of Delegates authorize a petition to the Supreme Judicial
Court's Standing Advisory Committee on the Rules of Professional Conduct to incorporate the
proposed definition into the Massachusetts Rules of Professional Conduct.

7 Lowell Bar Ass'n v. Loeb, 52 N.E.2d 27, 31 (Mass. 1943).
8 See Nat'l Soc’y of Prof'l Eng'rs, 435 U.S. at 689; Goldfarb, 421 U.S. at 787.
9 In re Opinion No. 26 of the Comm. on Unauthorized Practice of Law, 654 A.2d 1344, 1345-46 (N.J.
1995).
5
The MBA is a private organization of lawyers and is not a state agency. This letter is
addressed to the MBA's proposal to the Supreme Judicial Court to change the rules. The letter
should not be construed as offering any opinion about whether the Justice Department and the
FTC consider it legal under the Sherman Act, 15 U.S.C. § 1, or the Federal Trade Commission
Act, 15 U.S.C. § 45, for the Task Force or the MBA to define certain activities as the practice of
law for any other purpose. Nor does the letter address whether the MBA has adopted adequate
safeguards to ensure that its discussions on this issue do not violate the antitrust laws.
Restrictions on Lawyer/Non-lawyer Competition Should Be
Examined to Determine Whether They Are in the Public Interest
The Justice Department and the FTC recognize that there are circumstances requiring the
knowledge and skill of a person trained in the law. Nonetheless, the Justice Department and the
FTC believe that consumers generally benefit from lawyer-non-lawyer competition in the
provision of many services.
Prohibitions on the unauthorized practice of law should serve the public interest, as the
Massachusetts Supreme Judicial Court recognized in Lowell Bar Ass'n v. Loeb.7 An inquiry into
the public interest, however, involves not only assessing harm that consumers may suffer from
allowing non-lawyers to perform certain tasks, but also consideration of the benefits that accrue
to consumers when lawyers and non-lawyers compete. 8 More recently, the Supreme Court of
New Jersey has explained,
The question of what constitutes the unauthorized practice of law involves more
than an academic analysis of the function of lawyers, more than a determination
of what they are uniquely qualified to do. It also involves a determination of
whether non-lawyers should be allowed, in the public interest, to engage in
activities that may constitute the practice of law.
. . .
We determine the ultimate touchstone -- the public interest -- through the
balancing of the factors involved in the case, namely, the risks and benefits to the
public of allowing or disallowing such activities. 9
The MBA Task Force has proposed to define broadly what constitutes the practice of law
in Massachusetts. This proposed definition is not in the public interest because, by unnecessarily

10 Massachusetts Bar Association, Delegates Debate Law Practice Definition, Other Issues At May
Meeting (June 9, 2004), available at http://www.massbar.org/article.php?c_id=6650.
11 See Lowell, 52 N.E.2d at 31 (excluding non-attorneys from performing certain tasks cannot be justified
on the grounds of “protection of the bar from competition”).
12 This activity would be exempted under Section (d)(2) of the proposed definition only if (1) the tenant
receiving advice is deemed to be “a person who has obstacles to access to justice;” and (2) the tenants’ association
does not charge a fee and is a government entity, a not-for-profit entity, or a “qualified legal assistance
organization,” defined as:
a legal aid, public defender, or military assistance office; or a bona fide organization that recommends,
furnishes or pays for legal services to its members or beneficiaries, provided the office, service, or
organization receives no profit from the rendition of legal services, is not designed to procure financial
benefit or legal work for a lawyer as a private practitioner, does not infringe on the individual member’s
freedom as a client to challenge the approved counsel or to select outside counsel at the client’s expense,
and is not in violation of any applicable law.
(continued...)
6
limiting competition between attorneys and non-attorneys, it will likely cause more harm to
consumers than it may prevent. Indeed, one senior member of the MBA Task Force who helped
introduce the proposal to the MBA's House of Delegates said, "Business and government is [sic]
seeking to level the playing field on the theory that consumers will have more choice and this
will drive prices down for legal services," adding that "we are going to be marginalized out of
practice." 10 This statement suggests that the purpose of the definition is to protect lawyers from
competition, not to serve the interests of the public. 11
The Proposed Rule Would Likely Hurt Massachusetts
Consumers by Restraining Competition Between Lawyers and Non-lawyers
The Justice Department and the FTC believe that adopting the proposed definition would
harm consumers and fail to serve the public interest. The broad restrictions on lay practice found
in the draft definition – and the narrow exceptions found in subsection (d) – could restrict and
eliminate many forms of lawyer/non-lawyer competition. While developing an exhaustive list of
all possibly affected lay activities may be difficult, some examples include:
C 	real estate agents explaining to consumers such things as (i) the ramifications of failing to
have the home inspection done on time, (ii) the meaning of the mortgage contingency
clause, (iii) the meaning of an easement, (iv) the possible need to lower the price of a
home because of an unusually restrictive easement, or (v) the requirements for lead,
smoke detector, and other inspections imposed by state law;
C 	tenants' associations informing renters of landlords' and tenants' legal rights and
responsibilities, often in the context of resolving a particular landlord-tenant problem; 12

12 (...continued)
See Comment 4 to Proposed Definition of the Practice of Law in Ex. A to Report of the Task Force to Define the
Practice of Law and Proposed Rule 9.1(i) in Ex. B to Report of the Task Force to Define the Practice of Law.
13 Section d(2) of the proposed definition would exempt lay organizations, advocates, and consumer
associations only if these entities provided advice to institutionalized persons, or to “a person who has obstacles to
access to justice.” See Comment 4 to Proposed Definition of the Practice of Law in Ex. A to Report of the Task
Force to Define the Practice of Law. Further, to qualify for the exception under Section d(2), these entities cannot
charge a fee and must be either a government entity, a not-for-profit entity, or a “qualified legal assistance
organization.”
14 See Section c(2) of the proposed definition, which would define “selecting, drafting . . . or completing
legal documents” as the practice of law.
7
C 	income tax preparers and accountants interpreting federal and state tax codes, family law
code, and general partnership laws, and providing advice to their clients that incorporates
this legal information;
C 	investment bankers and other business planners providing advice to their clients that
includes information about various laws;
C 	lay organizations, advocates, and consumer associations that provide citizens with
information about legal rights and issues in competition with attorneys and help them
negotiate solutions to problems; 13
C 	employees and independent contractors who advise a client or employer about what must
be done to comply with local zoning laws, state labor laws, or safety regulations, and
who may negotiate contracts on behalf of their employers; and
C 	inexpensive electronic software to complete wills, trusts, tax forms, and other legal
documents, because the applications can be interactive and select certain clauses for the
documents based on answers that consumers give, as well as providing some legal
information and/or advice about those clauses.14
By Prohibiting Non-lawyer Competition for Many Services,
the Proposed Rule Would Likely Hurt the Massachusetts
Public by Raising Prices and Reducing Consumer Choice
When non-lawyers compete with lawyers to provide services that do not require formal
legal training, Massachusetts consumers may consider all relevant factors in selecting a service
provider, such as cost, convenience, and the degree of assurance that the necessary documents
and commitments are sufficient. The use of lay services also can reduce costs to consumers.

15 See, e.g., Countrywide Home Loans, Inc. v. Kentucky Bar Ass’n, 113 S.W.3d 105, 120 (Ky. 2003)
(“before title companies emerged on the scene, [the Kentucky Bar Association’s] members’ rates for such services
were significantly higher”). In 1997, Virginia passed a law upholding the right of consumers to continue using lay
closing services. Proponents of lay competition pointed to survey evidence suggesting that lay closings in Virginia
cost on average more than $150 less than attorney closings. See letters to the Virginia Supreme Court and Virginia
State Bar, supra n. 4.
16 While the bill for an attorney to draft a will and trust can easily run into the hundreds of dollars or
higher, retail software that permits the consumer to draft a simple will is available for less than $100.
17 See In re Opinion No. 26, 654 A.2d at 1348-49. In 1997, Virginia passed a law upholding the right of
consumers to continue using lay closing services. Proponents of lay competition pointed to survey evidence
suggesting that lay closings in Virginia cost on average more than $150 less than attorney closings. See letters to the
(continued...)
8
By limiting the ability of lay persons to provide such services in competition with
lawyers, the proposed rule would eliminate or reduce many of these benefits, potentially harming
Massachusetts consumers in several ways. First, the proposal would force consumers who
would not otherwise hire a lawyer to do so. Businesses and individuals that rely on accountants,
bankers, advocacy organizations, or other lay people for advice and information related to the
services that these professionals provide arguably would be required to hire attorneys instead.
Hence, the proposal could increase costs for all consumers who might prefer the combination of
price, quality, and service that a non-lawyer provider offers. For example, although accountants
and tax preparers do not typically itemize the legal-related functions included in their services, it
is probable that the cost of retaining an attorney for those same services would often be higher.
Advice and information about the laws from tenants' associations and other individual and
organizational advocates are often provided at substantially lower cost than an attorney would
charge. Evidence suggests that the use of lay real estate closers in various states provides a
lower cost alternative for consumers.15 Will-writing and other legal form-fill software packages
can be significantly less expensive than hiring an attorney to draft the will or other legal
document.16 Further, the proposal may hurt Massachusetts consumers by denying them the right
to choose a lay service provider that offers a combination of services or form of service that
better meets individual consumer needs. For example, consumers may choose to use legal
software packages, like the will and trust-writing software, because they are relatively easy and
convenient to use.
Second, by eliminating competition from non-lawyers, the proposed rule would likely
increase the price of lawyers' services because the availability of alternative, lower-cost lay
service providers typically restrains the fees that lawyers can charge. Consequently, even
Massachusetts consumers who would otherwise choose an attorney over a lay service provider
would likely pay higher prices if the proposed rule were adopted. The New Jersey Supreme
Court reached this same conclusion before ultimately rejecting an opinion that would have had
the effect of eliminating lay real estate closings. Evidence gathered in that proceeding indicated
that, in parts of New Jersey where lay closings are prevalent, buyers represented by counsel paid
on average $350 less for closings and sellers represented by counsel paid $400 less than in parts
where lay closings were not prevalent.17 Likewise, in August 2003, the Kentucky Supreme

17 (...continued)
Virginia Supreme Court and Virginia State Bar, supra n.4.
18 Countrywide Home Loans, Inc., 113 S.W.3d at 120.
19 G.L.c. 221 § 41.
20 Cf. FTC v. Indiana Federation of Dentists, 476 U.S. 447, 459 (1986) (“Absent some countervailing
procompetitive virtue,” an impediment to “the ordinary give and take of the market place . . . cannot be sustained
under the Rule of Reason.”) (internal quotations and citations omitted).
9
Court concluded that prices for real estate closings for attorneys dropped substantially as a result
of competition from lay title companies, explaining that the lay competitors' presence
"encourages attorneys to work more cost-effectively." 18
Finally, because the unauthorized practice of law is a crime in Massachusetts, punishable
by a fine or imprisonment,19 the Task Force should act with particular care in seeking to have the
Supreme Judicial Court define activities as the practice of law. The broad definition the MBA
has proposed, coupled with such stringent punishment, is likely to chill conduct even beyond that
which the MBA intends to prohibit. For example, some accountants or real estate agents may be
hesitant to provide clients with non-legal advice for fear of being engaged in the unauthorized
practice of law. By further limiting the areas where non-attorneys are willing to practice, this
over-deterrence is likely to exacerbate cost increases borne by consumers.
There Is No Indication that the Proposed Definition
Is Needed to Prevent Significant Consumer Harm
Restrictions on competition generally are considered harmful to consumers.
Accordingly, such restrictions are justified only by a showing that they are necessary to prevent
significant consumer harm and are narrowly drawn to minimize its anticompetitive impact.20 A
showing of likely harm is particularly important when, as here, the proposed restraint could
prevent consumers from using entire classes of providers. Without a showing that current
practice harms consumers, a restraint on competition is likely to hurt Massachusetts consumers
by raising prices and eliminating their ability to choose among competing providers, without
providing any countervailing benefits. The Justice Department and FTC are unaware of any
evidence that allowing non-lawyers to provide certain services has harmed consumers so as to
justify a broad definition of the practice of law that effectively precludes non-lawyers from
providing many services that benefit consumers and serve the public interest.
First, the agencies have not seen any factual evidence from the Task Force Report
demonstrating that consumers are actually hurt by the availability of lay services. The Task
Force Report asserts that
the chief reason for defining the practice of law is to protect the public welfare and
ensure that members of the public not suffer harm from the activities of persons who are

21 Report at ex. A, p.1.
22 As noted by the Justice Department and the FTC in a 1997 letter to the Virginia Supreme Court,
attorneys have been responsible for fraud involving Virginia real estate settlements in the 1990s. See Justice
Department and FTC letter to Virginia Supreme Court (Jan. 3, 1997), supra n.4.
23 See, e.g., Mass. Conveyancers Ass’n, Inc. v. Colonial Title & Escrow Inc, 2001 Mass. Super. LEXIS
431, at *20-21 (Suffolk, June 5, 2001).
24 Countrywide Home Loans, Inc., 113 S.W.3d at 119.
25 Id.
26 In re Op. No. 26, 654 A.2d at 1359.
10
not trained to apply the general body and philosophy of the law to fact specific matters,
who may be influenced by factors other than their client’s interests, or who are not
subject to the direct oversight and supervision of the Court.21
Yet the Task Force offers no evidence that consumers have “suffer[ed] harm” under the current
regime.22 Absent such evidence, it does not appear that the proposed definition is needed to
“protect the public welfare.”
Further, the Task Force's proposal seeks, among other things, to declare all real estate
conveyancing and closing activity to be the practice of law. But, as the Justice Department and
FTC observed in our recent letter to Massachusetts Representative Paul Kujawski, those that
have examined the issue have failed to find evidence that allowing non-attorneys to perform real
estate settlement functions results in consumer harm. For example, opponents of allowing lay
settlements have expressed a concern that buyers and sellers will have questions about the
transaction and the documents that a lay settlement provider cannot or should not answer. 23
However, with regard to the Kentucky Bar's assertion that attorneys need to be present at closing
to answer legal questions, the Kentucky Supreme Court found that "few, if any, significant legal
questions arise at most residential closings." 24 Further, with regard to a list of questions the
Kentucky Bar alleged were likely to arise at closing, the court noted that “most of the witnesses
conceded that questions of the nature of those [questions] listed . . . are asked, if ever, before the
closing, when there is time to resolve any problems.”25 Likewise, the New Jersey Supreme
Court found that the South Jersey practice of using non-attorneys to settle real estate transactions
“has been conducted without any demonstrable harm to sellers or buyers.” 26
Scholarship also supports the conclusion that consumers face no additional risk of harm
from turning to lay providers to perform real estate settlement services. One study, for example,
compared five states where lay providers examined title evidence, drafted instruments, and
facilitated the closing of real estate transactions with five states that prohibit lay provision of
these settlement services. The author found "[t]he only clear conclusion" to be "that the
evidence does not substantiate the claim that the public bears a sufficient risk from lay provision

27 Joyce Palomar, The War Between Attorneys and Lay Conveyancers – Empirical Evidence Says “Cease
Fire!”, 31 C ONN . L. R EV. 423, 520 (1999).
28 Deborah Rhode, Access to Justice: Connecting Principles to Practice, 17 G EO. J. LEGAL ETHICS 369,
407-08 (2004). See also H ERBERT M. K RITZER , LEGAL A DVOCACY : LAWYERS AND N ON LAWYERS AT W ORK 50-51
(1998) (finding that in unemployment compensation appeals before the Wisconsin Labor and Industry Review
Commission, “[t]he overall pattern does not show any clear differences between the success of lawyers and agents”).
29 Id.
30 R ESTATEMENT (THIRD) OF LAW G OVERNING LAWYERS § 4 cmt. c (2000).
11
of real estate settlement services to warrant blanket prohibition of those services under the
auspices of preventing the unauthorized practice of law."27
Similarly, scholarship indicates that consumers in other areas likely to be affected by the
proposed definition face little risk of harm from non-lawyer competition. According to
Professor Deborah Rhode, studies of lay specialists who provide bankruptcy and administrative
agency hearing representation find that they perform as well as or better than lawyers. 28
Likewise, a systematic survey found that complaints about unauthorized practice of law in most
states did not come from consumers (who would be the victims of such conduct) but from
lawyers, who did not allege any claims of specific injury. 29 As the Restatement (Third) of Law
Governing Lawyers has explained:
Several jurisdictions recognize that many such [law-related] services can be
provided by nonlawyers without significant risk of incompetent service, that
actual experience in several states with extensive nonlawyer provision of
traditional legal services indicates no significant risk of harm to consumers of
such services, that persons in need of legal services may be significantly aided in
obtaining assistance at a much lower price than would be entailed by segregating
out a portion of a transaction to be handled by a lawyer for a fee, and that many
persons can ill afford, and most persons are at least inconvenienced by, the
typically higher cost of lawyer services. In addition, traditional common-law and
statutory consumer-protection measures offer significant protection to consumers
of such nonlawyer services.30
It is also important to note that the proposed definition does not guarantee that
Massachusetts consumers will have the benefit of independent or experienced counsel; it only
assures that an attorney, rather than a lay person, will be involved in certain transactions. The
selection, preparation, and completion of legal documents that the rule would require an attorney
to do could be done by an attorney representing the other party. Real estate loan work could be
done by the lender's lawyer, and the attorney who settles a real estate transaction typically will
represent the lender as well. In these cases, the lawyers involved do not represent the consumer.
While they might provide some legal explanations to consumers, they could not provide true

31 See Countrywide Home Loans, Inc., 113 S.W.3d at 122.
32 See, e.g., McCormack v. Galego, 1996 WL 131209, at *3 (Mass. Super. Mar. 4, 1996).
33 A M. B AR A SS ’N FUND FOR J USTICE & ED., LEGAL N EEDS & C IVIL J USTICE: A SURVEY OF A MERICANS
(1996). The most common legal needs reported by respondents were related to personal finances, consumer issues,
and housing. For low- and middle-income households, the most common response to a legal problem was “handling
the situation on their own.” For low-income households, the second most common response was to take no action at
all. The second most common response for middle-income households was to use the legal system, including
contacts with lawyers, mediators, arbitrators, or official hearing bodies.
34 Id.
35 See notes 12-13, supra.
12
legal advice to a consumer or protect him or her.31 Nor would their presence likely give a
consumer the leverage to halt a transaction that is against his or her best interest. The same is
true of a lawyer who represents both lender and buyer. Under Massachusetts law, moreover,
absent such an attorney-client relationship, a party cannot assert a malpractice claim against an
attorney.32 In addition, the only requirement in the Task Force definition is that it be a lawyer
who performs the service; the lawyer need not have any particular expertise or experience with
the type of law or service.
Although the intent of the Task Force’s proposal may be to ensure that consumers receive
advice only from highly-trained individuals, consumers who receive assistance from individual
advocates and advocacy organizations may be unable to hire a lawyer and may simply go
without assistance altogether. A 1996 ABA task force survey, for example, concluded that low
income (less than $25,000 per year) and middle-income (between $25,000 and $60,000 per year)
households are severely underserved by the legal system.33 Specifically, the ABA found that of
the low- and middle-income households in the sample that had legal problems, only one-third of
low-income and only 40 percent of middle-income households handled them through the legal
system. Though cost was a lesser concern for middle-income households, both low- and middle-
income households listed cost as a major reason for avoiding the legal system.34 Given its very
narrow exemption for advocacy programs, the proposed definition is likely to thwart attempts to
provide cost-effective legal services to this underserved population. 35
For consumers, the services of a licensed lawyer may well be desirable in certain
situations. A Massachusetts consumer might choose to hire an attorney to answer legal
questions, provide legal advice, research the case law, negotiate settlements, or offer various
protections. Consumers who hire attorneys may get better service and representation than those
who do not. This is, however, no reason to restrict the ability of non-lawyers to compete, as the
proposed Task Force definition would.
Until demonstrated otherwise, accountants, bankers, individual advocates and advocacy
organizations, real estate brokers, and other skilled professionals should remain able to provide

36 Countrywide Home Loans, Inc., 113 S.W.3d at 121.
37 Id.
38 G.L.c. 93A § 2. G.L.c. 93A § 9 provides a cause of action for consumers, and G.L.c. 93A § 11 provides
a cause of action for businesses. A consumer may have additional leverage over an attorney who provides shoddy or
dishonest service because the consumer can refer the attorney to the bar association for misconduct, and an attorney
also may be less likely to be “judgment proof” to the extent that he or she is more likely than a non-attorney to carry
malpractice insurance against negligence claims. Further, in a negligence case, an attorney likely is subject to a
higher standard of care than is a lay provider. See Fishman v. Brooks, 487 N.E.2d 1377, 1379 (Mass. 1986)
(standard of care for non-specialist in a legal malpractice suit is “the degree of care and skill of the average qualified
practitioner”). Nevertheless, there is no reason to believe that the standard of care the law requires of a lay person is
below what is necessary to perform correctly a legal task entrusted to him or her, especially in view of the generally
simple legal tasks most often performed by non-attorneys. Further, it is likely to be more costly for a consumer to
bring a legal malpractice case against an attorney than to bring a negligence case against a lay person. Under
Massachusetts law, a lawyer’s breach of the duty of care must be proven by expert testimony, unless “the alleged
malpractice is so gross or obvious that laymen can rely on their common knowledge to recognize or infer
negligence.” Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 515 N.E.2d 891, 894 (Mass. App. Ct.
1987) (internal quotations omitted).
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advice and legal information related to their particular practices without harming the public.
This already occurs every day in multiple jurisdictions, with little or no evidence that consumers
would benefit if the same advice were provided solely by an attorney.
Less Restrictive Measures May Protect Consumers
Absent a clear demonstration not only that lay services have injured Massachusetts
consumers, but also that less drastic measures cannot remedy any perceived problem, the
proposed definition should not be adopted. Indeed, as a threshold matter, less restrictive
alternatives to protect consumers are already in place. First, through reputation, the marketplace
is likely to limit the ability of non-attorneys to provide shoddy service or otherwise take
advantage of consumers. As the Kentucky Supreme Court has recognized, lay providers earn
their livelihoods from providing these services; they risk those livelihoods if they commit acts
that hurt consumers. 36 Consequently, they have great incentives to act ethically and
professionally. Further, just as attorneys are subject to statutory, malpractice, and contract
claims, lay providers are subject to similar claims if their negligence causes consumer harm. 37
For example, G.L.c. 93A provides a cause of action to consumers and businesses harmed by
“unfair or deceptive acts or practices in the conduct of any trade or commerce.”38
Although we urge the Task Force to refrain from proposing this amendment to the
current Massachusetts Rules of Professional Conduct, if the Task Force considers a change in the
rules necessary, any change should be narrowly tailored to address demonstrated harms and not
to prohibit non-lawyer competition that is beneficial to consumers and in the public interest. Less
restrictive alternatives are available to protect consumers. In real estate closings, for example,
the New Jersey Supreme Court has required written notice to consumers of the risks involved in

39 In re Opinion No. 26, 654 A.2d at 1363.
40 Id. at 1352.
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proceeding with a real estate transaction without an attorney. 39 This measure permits consumers
to make an informed choice about whether to use lay closing services.
Conclusion
The Task Force's proposed definition of the practice of law will likely unnecessarily and
unreasonably reduce competition between attorneys and non-attorneys. Massachusetts
consumers will likely pay higher prices and face a smaller range of service options with little or
no offsetting benefit. The Task Force makes no showing of harm to consumers from lay service
providers that would justify these reductions in competition. 	As the New Jersey Supreme Court
has concluded:
Not every such intrusion by laypersons into legal matters disserves the public:
this Court does not wear public interest blinders when passing on unauthorized
practice of law questions. We have often found, despite the clear involvement of
the practice of law, that non-lawyers may participate in these activities, basing our
decisions on the public interest.40
The Justice Department and FTC thank you for this opportunity to present our views.
We would be pleased to address any questions or comments regarding this letter.

15
Sincerely yours,
R. Hewitt Pate
Assistant Attorney General
Jessica N. Butler-Arkow
Trial Attorney
United States Department of Justice
Antitrust Division
By direction of the
Federal Trade Commission,
Deborah Platt Majoras
Chairman
Maureen K. Ohlhausen
Acting Director
Office of Policy Planning