In Cook County many branch courts sit simultaneously and many pretrial and motion calls are held at the same time. It is often difficult or impossible for an attorney to answer every call for which he is attorney-of-record. This problem is occasionally solved by the use of clerks or law students to anser such calls, explain the attorney's absence, and request a continuance. The question is at what point do such appearances constitute the unauthorized practice of law?
Specifically, the question is whether law students, other than those licensed under Illinois Supreme Court Rule 711, may make court appearances on behalf of attorneys to request continuances. Such students are not authorized to practice law, so the question becomes, does such action constitute the practice of law? The Illinois Appellate Court, First District, has held that requesting a continuance does not amount to the unauthorized practice of law.
The definition of practice of law is the province of the courts, rather than the legislatures. Lowell Bar Assn. v. Loeb, 315 Mass. 176, 52 N.E. 2d 27 (1943); People ex rel. Chicago Bar Assn. v. Goodman, 366 Ill. 346, 8 N.E.2d 941 (1937). The courts have not attempted to arrive at a comprehensive definition of the practice of law. Id. At 351. The line drawn by the courts usually divides between ministerial or preparatory matters and activities amounting to "management" of the litigation. Law Clerks and The Unauthorized Practice of Law, 46 Chi [-] Kent L. Rev. 214 (1969). (See EXHIBIT H1-H9). The Supreme Court of Washington, in defining the limits of clerk's participation stated:
The line of demarcation as to where their work begins and where it ends
cannot always be drawn with absolute distinction or accuracy. Probably
as nearly as it can be fixed, and it is sufficient to say that it is work
of a preparatory nature, such as research, investigation of
details, the assemblage of data and other necessary information, and such other work as will assist the employing attorney in carrying the matter to a completed product, either by his personal examination and approval thereof, or by additional effort on his part. The work must be such, however, as loses its separate identity and becomes either the product, or else merged in the product, of the attorney himself.
Ferris v. Snively, 172 Wash. 167, 176-77, 19 P.2d 942, 945-946 (1933).
If the work of the student clerk is such that it assumes an identity of its own, that is it reflects his own management of the litigation rather than ministerial work under the direction of an attorney, it constitutes the unauthorized practice of law. One is practicing law when s/he "assumes the general control of the action." Tom Edwards Chevrolet, Inc. v. Air-Cel, Inc., 13 Ill App. 3d 378, 379, 300 N.E.2d 312, 313 (2d Dist. 1973).
The legal profession, perhaps wisely, has declined to attempt to define the nature of legal services. It only asserts a monopoly over the exercise of 'professional judgement' on behalf of clients.....
Siegfried Hesse, "General Practitioners and Legal Assistants: A Position Paper," 36 Unauthorized Practice News, 1, 2 (March, 1971).
It would seem that a purely ministerial act, such as asking for a continuance
date at the direction of an attorney would not amount to management or
control of the litigation, or the exercise of professional judgment. This
view was adopted in Illinois in the case of People v. Alexander,
53 Ill. App. 2d 299, 202 N.E.2d 841 (1st Dist. 1964). (See EXHIBIT
Il-I3). The Alexander case involved an appeal from a judgement adjudging
defendant guilty of contempt of court for the unauthorized practice of
law. Alexander, a law student clerk, had appeared and advised the court
that the trial attorney was engaged in a trial in the federal court. The
appellate court, in reversing the contempt conviction, stated:
We agree with the trial judge that clerks should not be permitted to make motions or participate in other proceedings which can be considered as 'managing' the litigation. However, if apprising the court of an employer's engagement or inability to be present constitutes the making of a motion, we must hold that clerks may make such motions for continuances without being guilty of the unauthorized practice of law. Certainly with the large volume of cases appearing on the trial calls these days, it is imperative that this practice be followed.
Id. At 843.
In reaching this conclusion, the court recognized the necessity of protecting both the public and the legal profession against the dangers of the practice of law by those not professionally trained and educated. But when the activities performed by clerks or student are purely ministerial, these interests ate outweighed by the need to assure more efficient operation of the courts and to more properly allocate the skills and efforts of attorneys:
We cannot add to the heavy burden of lawyers who in addition to responding to trial calls must answer pretrial calls and motions calls - all held in the morning - by insisting that a lawyer must personally appear to present to a court a motion for a continuance on grounds of engagement or inability to appear because of illness or other unexpected circumstances. To reduce the backlog, trial lawyers should be kept busy actually trying lawsuits and not answering court calls.
Id. At 844.