RI Supreme Court to Responsive Law: Please File a Formal Motion Asking Permission to File Informally
by Tom Gordon
In Rhode Island, the state’s Unauthorized Practice of Law Committee—which consists of thirteen lawyers and one member of the public—recently declared that lawyers were required for real estate closing duties traditionally (and competently) performed by real estate agents. Of course, requiring a lawyer for these transactions does nothing to protect the public, but it does add to the already high cost of purchasing a home.
The Rhode Island Supreme Court is reviewing the committee’s decision. When a state supreme court reviews a committee decision, rather than a dispute between two parties, it’s acting as a policymaking body, much like a state legislature. It’s supposed to allow public participation in the policy making process. So Responsive Law submitted written testimony to the court.
Rather than consider our testimony, as state supreme courts nationwide have done when we’ve submitted similar testimony, the Rhode Island Supreme Court rejected it.
The reason? Responsive Law’s testimony failed to comply with the requirements for formal amicus curiae briefs. The rules governing such briefs are over 2500 words long—longer than our actual testimony! Here's a partial list of the requirements:
In an irony I would find amusing if it weren’t so outrageous, the court told us in its rejection notice that we could file a formal motion asking for permission to file in a form other than a formal brief. Such a motion, of course, still has to be drafted by a Rhode Island lawyer, still requires a filing fee, and still has to conform to the other requirements above.
Thanks to the volunteer efforts of Timothy Baldwin, of the firm Whelan, Corrente, Flanders, Kinder & Siket LLP, we filed briefs on December 18 in the three combined cases before the Supreme Court, asking the court for permission to file our comments in the form that multiple other state supreme courts have accepted from us.
This is a matter where the Rhode Island Supreme Court is acting in its policymaking capacity, rather than as an appellate reviewer of a contested case from a lower court. (The UPL Committee even said in its opinion that it was asking for clarification of the law rather than civil or criminal action against the parties.) Therefore, there’s no need to require counsel or formal amicus briefs. These requirements are in place to protect clients or opposing parties, and there are none in this case.
Citizens have a First Amendment right to petition the government on a matter of public policy. Just as there’s no requirement that citizens speak through a lawyer when testifying to legislatures or executive agencies in their policymaking capacity, neither should there be a requirement that they do so when the judicial branch engages in pure policymaking. Although the Rhode Island Supreme Court's position would still permit individuals from commenting as a self-represented "litigant," it would effectively prevent them from joining together through a nonprofit corporation to do so by erecting substantial burdens (hiring a lawyer, paying a filing fee, and nitpicking formatting requirements, among others) on that corporation's ability to speak on behalf of its constituency.
This goes beyond the already widespread problem of insider lawyers manipulating the rules governing the provision of legal services. In this case, the public is not only unrepresented in a policymaking process controlled by lawyers, it's prevented from even commenting on that process. It's a violation that extends beyond governance of the legal profession to the public's right to participate in a democracy.