[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

Chapter 2
Judicial Regulation of Lawyers
This chapter focuses on three ways that the judicial branch of government uses its inherent
power to regulate the practice of law. Courts (1) define “the practice of law,” (2) establish
requirements for admission to practice, and (3) administer professional discipline.
Few give a second thought to the special power that a law license provides. Yet only
lawyers can “practice law” by launching lawsuits, issuing subpoenas, demanding documents
and testimony, and appearing in courts on behalf of clients. Lawyers also practice law by
drafting legal opinions and legal documents without which transactions would not be
consummated and the wheels of commerce would not turn smoothly. Just as important,
lawyers practice law by giving legal advice and offering moral suasion that promotes private
respect for the law and its requirements. The fact that lawyers regularly exercise all these
prerogatives — and others — should enhance our appreciation and respect for the fact that
a law license grants these powers exclusively to members of our profession.
We begin this chapter by examining how the inherent power of the courts allows them
to define the practice of law to include those licensed to practice law, as well as to exclude
both nonlawyers and lawyers from engaging in the unauthorized practice of law where not
admitted to a particular jurisdiction.
Current U.S. restrictions on the unauthorized practice of law originated about a
century ago. In some states, statutes define the restriction and provide for criminal (usually
misdemeanor) penalties. 1 The first case in this chapter, Campbell, illustrates the other
option by which courts enforce the restriction through discipline and injunctive relief
rather than criminal penalty. 2 Campbell also illustrates the practice of all states to rely on
judicial definitions for the exact meaning of the practice and the unauthorized practice of
law.
A. Judicial Regulation of the Practice of Law
Federal and state courts have identified certain inherent powers essential to maintaining the
judicial branch of government. 3 Most are positive inherent powers; that is, powers the
judicial branch of government finds necessary to perform its constitutionally required
functions. Since judges find lawyers essential to their function, the admission and discipline
of lawyers has long been recognized as one of these positive inherent powers.
In the context of lawyer regulation, most courts also recognize a negative inherent
power that enables them to nullify another branch of government’s exercise of the same
power. Courts exercise a negative inherent power when they declare a legislative enactment
unconstitutional because it infringes on the judicial prerogatives to regulate lawyers and to
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