Landheer and UPL
I've got a libertarian bent, so I'm not a big fan of UPL (unauthorized practice of law) statutes. I realize that they help me by restricting competition, but I'm not sure that they really help the general public. There are a lot of bad attorneys out there, and probably a lot of people (like your better accountants and CFPs) who could do many of the things some attorneys can do, maybe even do them better. Instead, the bar seems to pick and choose what it considers to be the practice of law, keeping the good stuff for itself and pushing down the boring or "unsexy" work to non-lawyers.
All of which brings me to the case of Landheer v. Landheer (available heer, er, here as a PDF). The case involved a dispute among siblings over whether their father's trust amendment was valid. While Landheer does not depend on the UPL statutes, it uses another statute (the Consumer Fraud and Deceptive Business Practices Act (the "Act")) to reach a horrifying result. Here's the relevant language of the Act:
The assembly, drafting, execution, and funding of a living trust document or any of those acts by a corporation or a nonlawyer is an unlawful practice within the meaning of this Act.
There are also potential criminal penalties under the Act, but the bombshell dropped by the court here is that, because it was drafted by a non-lawyer, the trust amendment is null and void, and has no effect. Note that this result would be reached even if there was extensive proof that the living trust amendment reflected the wishes of the person who signed it.
Does this sound like a good decision to you?
