Certification System for Unauthorized Practice of Estate Planning

Michael S. Knowles recently published his article entitled Keep Your Friends Close and the Laymen Closer: State Bar Association Can Combat the Problems Associated with Nonlawyers Engaging in the Unauthorized Practice of Estate Planning Through a Certification System, 43 Creighton L. Rev. 855 (2010).  An excerpt from the introduction is below:

This Article proceeds in three sections. First, this Article’s Background explores regulations on the practice law and the unauthorized practice of law. The Background includes an overview of the American Bar Association’s involvement in the regulation of nonlawyers engaging in the practice of law. Additionally, the Background examines the practice of law, including an overview of various jurisdictions’ methods of regulating the practice of law and regulatory systems from Nebraska, Illinois, and Arizona. The Background concludes by examining issues of unauthorized practice of law created by the modern trend of do-it-yourself estate planning. Next, this Article’s Argument asserts that many of the current approaches to regulating the practice of law do not adequately address issues of unauthorized practice of law surrounding nonlawyer involvement in estate-planning activities. This Argument then elucidates three reasons why jurisdictions should embrace, rather than resist, nonlawyers selling estate-planning instruments by assigning state bar associations the task of establishing and managing a certification system for nonlawyers providing such instruments. First, the Argument opines that states need to assign state bar associations the task of establishing and managing a certification system because the current methods employed to regulate the practice of law do not sufficiently protect consumers from potentially incompetent nonlawyer-provided estate-planning services. Second, the Argument provides that states need to assign state bar associations the task of establishing and managing a certification system because nonlawyer-provided estate-planning services would increase access to the justice system. Third, the Argument opines that states need to assign state bar associations the task of establishing and managing a certification system so that certified nonlawyers are held responsible for their estate-planning services. Finally, this Article concludes that states need to assign state bar associations the task of establishing and managing a certification system to vindicate the purported justifications for regulating the practice of law.