Toward National Uniformity in the Treatment of Public Insurance Adjusters Under State Unauthorized Practice of Law Provisions
Document Type Article
This paper received first place in the competition for the 2009 Paul Cordish Memorial Award. The paper may also be found at: http://www.napia.com/news/pcma-papers.asp
Abstract
At present, forty-four of fifty states, plus the District of Columbia, license public insurance adjusters to assist policyholders in the settlement of claims for property loss under insurance contracts. In the six states that do not license public adjusters, however, state authorities may at any time conclude that the profession as a whole, by its very nature, constitutes the unauthorized practice of law (UPL). Arkansas flatly prohibits public adjusting on this basis.
By restricting public adjusting activities to members of the bar, policyholders are obliged to pay higher fees for legal representation where the services of a non-attorney adjuster would be sufficient, if not preferable. In addition to being unwise policy, such prohibitions also run afoul of current trends in UPL regulation and, arguably, the United States Constitution and federal antitrust laws. This Article advocates a case-by-case approach to determining whether public adjusters have engaged in the unauthorized practice of law.