John Gradwohl, ‘Legislative Enactment of Standard Forms’

“Consideration of legislative enactment of statutory forms requires a comparative analysis of current policies of consumerism with current policies underlying prohibitions on the unauthorized practice of law. In reality, that comparison is disproportionately in the hands of lawyers rather than neutrals or public consumers. Consumerism of individual lawyers and bar associations may be offset by the business side of lawyering, specious personal opinions about the unauthorized practice of law without reference to the actual rules regulating it, fears of uncontrollable practice of law by nonlawyers – especially nonlawyers armed with electronic legal information, influence of private clients of lawyers and lobbyists with competing interests, and lawyers serving as part-time legislators who instinctively prioritize the historical-traditional roles of lawyers. Statutory forms are important in implementing the provisions and policies of the basic statute. No other form, however professionally prepared, can bestow the same validation as a legislative statement that ‘a [document] in substantially the following form shall be sufficient [to invoke the provisions of this Act].’ That form will produce the most extensive standardization of practice relating to the subject. A statutory form can serve as a guide to understanding the substantive provisions of the statutes as well as a means of insuring that the provisions are properly given effect. Statutory forms provide an opportunity for legislatures to enact reliable, ‘understandable and consumer friendly’ forms. Otherwise, a variety of forms, some more complex, confusing, and costly, dealing with the same statutes, are likely to be used. The added costs will be borne by both consumers and by the legal system called upon to resolve unclear situations. Subsequent legislation affecting a statutory form can contemporaneously be amended into the statutory form and maintain the greatest currency for the form. The same professional focused attention of proponents and legislatures should be given to statutory form provisions in proposed enactments as to all major provisions at issue. …” (more)

[Wills, Trusts & Estates Prof Blog, 19 February]

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