To any business owner with employees, it’s no secret that the employment relationship has become an intensely regulated commodity in the United States, especially in the last thirty years. Gone are the days where employee benefits, vacation time, and perks were something to be negotiated and agreed upon between employer and employee by way of private contract; now, these are matters to be voted upon by state and federal legislatures.

The result is an ever-growing and ever-complex web of regulations, statutes, and case law sufficiently overwhelming that many employers often choose to ignore entirely or instead delegate to so-called “compliance professionals” so they can run their businesses without government interference or being bankrupted over a lawsuit by a disgruntled employee. This is to be expected: Employers cannot run a business and be legal experts at the same time. However, that is why businesses require employment counsel.

An employment attorney specializes in this area of law and helps employers navigate it to maintain maximum control over their business operations while limiting liability or legal exposure. This requires the legal expertise to develop and implement creative solutions, the capacity to articulate and apply the law to unique factual scenarios, the ability to distinguish between sources of law and identify which is controlling, the background to assess legal liability objectively, and the license and qualification to serve as an effective advocate in litigation if the government or an employee takes legal action against the business.

Unfortunately, many employers have adopted a mindset of passive avoidance; to even engage with employment counsel is to acknowledge the “monster” lurking over their shoulder, which they would rather disregard. Non-legal professionals, particularly in the HR industry, have preyed upon those same businesses by selling unverified, untrustworthy “compliance guidance” that is effectively legal guidance but without the input of a licensed practitioner—all with the sanction and approval of the American Bar Association (ABA).

The ABA’s 2002 “Task Force” Draws Clear Lines in Its Proposed Model Definition of “Practice of Law”

In 2002, the ABA established a “Task Force” to propose a model definition of what constitutes “practice of law.” The ABA Task Force initially proposed a succinct, straightforward draft definition which included the following in part:

“‘Practice of law’ is the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.”

There can be little doubt that the ABA’s first attempt essentially captured what it means to “practice law,” thereby establishing the function of a licensed attorney.

If the definition left any uncertainty, the ABA’s draft proposal also offered several categorical examples of “practicing law” that would seem sufficiently clear to resolve those lingering questions:

“A person is presumed to be practicing law when engaging in any of the following conduct on behalf of another: Giving advice or counsel to persons as to their legal rights or responsibilities or to those of others; Selecting, drafting, or completing legal documents or agreements that affect the legal rights of a person; Representing a person before an adjudicative body, including, but not limited to, preparing or filing documents or conducting discovery; Negotiating legal rights or responsibilities on behalf of a person.”

One would imagine that inclusion of the above language in the ABA’s draft proposal defining “practice of law” would garner little controversy among practicing attorneys or anyone who has consulted an attorney. From the moment a prospective attorney enters law school, the “application of law to fact” is what professors drill into students, what exams test, and what legal employers expect of law students recruited to their summer or other part-time programs.

This seemingly rational definition, however, was doomed from the start. While the original ABA drafters were explicit about their primary goal—”the protection of the public”—the forces that shaped the final adopted version had different priorities. The public comments reveal the motivations and sources responsible: a coordinated effort by industry lobbyists seeking to retain authority to promote quasi-legal services without the accountability or licensing requirements that would otherwise apply.

The HR Industry Pushes Back

When the ABA sought public comments, the input that evidently held the most sway came from lobbyists for the Human Resources (HR) industry. The then-CEO of the Society for Human Resources Management (SHRM), Susan Meisinger, J.D., SHRM-SCP, vociferously opposed the original proposed definition as inadequately inclusive of “human resources professionals.” Ms. Meisinger’s public profile indicates she holds a law degree but pursued a non-legal career. The SHRM is the most visible national association representing the HR industry; its website boasts a membership 340,000 strong, and its far-reaching lobbying efforts and spending on contributions to politicians make it one of the most influential lobbying organizations in the United States. No other national representatives of a single industry submitted public commentary in complete objection to the ABA’s initial draft rule (the American Institute of Certified Public Accountants requested a specific, limited exception), and none of the submitted comments appeared more eager and determined to eviscerate the ABA’s early draft than from SHRM.

Ms. Meisinger’s argument was neither about protecting the public nor maintaining professional standards. In fact, Ms. Meisinger acknowledged that self-described HR professionals provide (and charge money for) services that qualify as legal in nature, and she objected to the ABA’s original proposal on the grounds that it would proscribe “those in the HR profession” from doing so. Rather than appeal to any alternative method for accountability or certification, she argued simply that HR professionals already provided such services routinely, and so they should be permitted to continue without the ABA’s intervention.

The premises and assumptions behind Ms. Meisinger’s arguments were largely incoherent, self-servingly dishonest, and contradictory. She evaded entirely the question of what impact it would have on the public if unlicensed, unqualified persons were permitted to engage in a highly technical craft with the implicit approval of the licensing body supposedly responsible for regulating it. Nonetheless, the lobbying effort of the HR industry succeeded in defeating the draft proposal.

The ABA Retreats

Instead of standing firm, the ABA adopted a watered-down resolution that merely recommended states adopt their own definitions. The ABA’s final resolution “recommend[ed] that every state and territory adopt a definition of the practice of law.”

This was adopted with the caveat “[t]hat each state’s and territory’s definition should include the basic premise that the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity.”

The ABA chose to dilute the settled-upon definition by declaring that there is no settled definition. Instead, it became a matter for the “states” to adopt such a definition. That law consists of the “application of legal principles” was downgraded to an afterthought, merely something to “include” in a definition—as if it is not otherwise a complete definition. To characterize the ABA’s adopted resolution as a punt to the states would be an understatement; a Model Rule is itself advisory, and the language of such a model rule is meant to serve only as an example of how a statute might be articulated if a state legislature adopted the principle behind it.

Where the original proposed definition made clear that the practice of law requires specific training—”the knowledge and skill of a person trained in the law”—the ABA’s final resolution suggests that “minimum qualifications, competence, and accountability” are relevant, but not necessary components to the practice of law.

In abandoning the structured, precise definition initially proposed in favor of the incomprehensible and deliberately open-ended version that became final, the ABA not only missed an opportunity to resolve the issue but also gave its sanction for non-legal professionals to engage in the unauthorized practice of law. It undermined any states that would adopt the original definition—why should any legislature adopt language that the ABA considered and rejected?

Moreover, the ABA’s cowardice condemned attorneys to compete with non-professionals and failed to emphasize the distinctions between the role of an attorney and non-legal service professional, to the detriment of the businesses that rely upon said legal professionals.

If a non-attorney looking in from the outside thought that it reflected poorly on the profession that lawyers are evidently unable to clearly define what it is they do that makes them lawyers—in a profession where services are billed out at hundreds, and at the top end, thousands of dollars per hour—they would be right. These are just some of the profound implications of the ABA’s utter retreat. And, indeed, 20 years later, we see the results.

The Consequences…

In “Part 2” of my article series on this subject, I examine how “HR compliance” has produced disastrous results for employers who unwittingly rely on it and how attorneys have been hamstrung by the ABA to correct this dynamic.