Bill Text: HI SB1044 | 2010 | Regular Session | Introduced
Bill Title: Unauthorized Practice of Law; Professional License
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced - Dead) 2009-05-11 - Carried over to 2010 Regular Session. [SB1044 Detail]
Download: Hawaii-2010-SB1044-Introduced.html
Report Title:
Unauthorized Practice of Law; Professional License
Description:
Allows licensed professionals to provide services within the scope of their license without violating the prohibition on the unauthorized practice of law.
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THE SENATE |
S.B. NO. |
1044 |
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TWENTY-FIFTH LEGISLATURE, 2009 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to attorneys.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 605-14, Hawaii Revised Statutes, is amended to read as follows:
"§605-14 Unauthorized practice of law
prohibited. (a) It shall be unlawful for any person, firm,
association, or corporation to engage in or attempt to engage in or to offer to
engage in the practice of law, or to do or attempt to do or offer to do any act
constituting the practice of law, except and to the extent that the person,
firm, or association is licensed or authorized so to do by an appropriate
court, agency, or office or by a statute of the State or of the United States.
Nothing contained in sections 605-14 to 605-17 [contained] shall
be construed to prohibit the preparation or use by any party to a transaction
of any legal or business form or document used in the transaction."
(b) For the purposes of this section, "practice of law" means the provision of professional legal advice or services by a person, firm, association, or corporation. "Practice of law" does not include the provision of services by a person, firm, association, or corporation licensed or authorized under chapters 431, 453, 464, 466, or 467; provided that the person, firm, association, or corporation acts according to the terms of the license or authorization and does not provide or profess to provide professional legal advice, services based on legal competency, or standing in the law."
SECTION 2. Section 431:3-201, Hawaii Revised Statutes, is amended to read as follows:
"§431:3-201 Authority required.
(a) No person shall act, purport to act, or advertise the person's services
as an insurer and no insurer shall transact insurance business in this State
other than as authorized by a certificate of authority granted to it by the
commissioner; except as to [such] transactions as are expressly
otherwise provided in this code.
(b) The investigation and adjustment of claims
in this State arising under insurance contracts issued by an unauthorized
insurer, except surplus line insurance issued pursuant to section 431:8-301,
shall be deemed to constitute the transaction of insurance in this State,
unless the [same] investigation and adjustment of claims are
isolated or nonrecurring transactions.
(c) Every certificate of authority shall include but not be limited to:
(1) The name of the insurer and the classes of insurance it is authorized to transact in this State; or
(2) The name of and location of the principal office of its attorney-in-fact if a reciprocal insurer.
(d) An insurer who possesses a certificate of authority in good standing under this chapter and applicable rules shall not be deemed to be engaged in the practice of law when providing services within the scope of the insurer's certificate of authority."
SECTION 3. Section 453-2, Hawaii Revised Statutes, is amended to read as follows:
"§453-2 License required; exceptions. (a) Except as otherwise provided by law, no person shall practice medicine or surgery in the State, either gratuitously or for pay, or offer to practice medicine or surgery in the State, or advertise or announce one's self, either publicly or privately, as prepared or qualified to practice medicine or surgery in the State, or append the letters "Dr.", "M.D.", or "D.O." to one's name with the intent to imply that the person is a practitioner of medicine or surgery, without having a valid unrevoked license or a limited and temporary license obtained from the Hawaii medical board.
(b) Nothing herein shall:
(1) Apply to so-called Christian Scientists; provided that the Christian Scientists practice the religious tenets of their church without pretending a knowledge of medicine or surgery;
(2) Prohibit service in the case of emergency or the domestic administration of family remedies;
(3) Apply to any commissioned medical officer in the United States armed forces or public health service engaged in the discharge of one's official duty, nor to any practitioner of medicine and surgery from another state when in actual consultation, including in-person, mail, electronic, telephonic, fiber-optic, or other telemedicine consultation with a licensed physician or osteopathic physician of this State, if the physician or osteopathic physician from another state at the time of consultation is licensed to practice in the state in which the physician or osteopathic physician resides; provided that:
(A) The physician or osteopathic physician from another state shall not open an office, or appoint a place to meet patients in this State, or receive calls within the limits of the State for the provision of care for a patient who is located in this State;
(B) The licensed physician or osteopathic physician of this State retains control and remains responsible for the provision of care for the patient who is located in this State; and
(C) The laws and rules relating to contagious diseases are not violated;
(4) Prohibit services rendered by any person certified under part II of this chapter to provide emergency medical services, or any physician assistant, when the services are rendered under the direction and control of a physician or osteopathic physician licensed in this State except for final refraction resulting in a prescription for spectacles, contact lenses, or visual training as performed by an oculist or optometrist duly licensed by the State. The direction and control shall not be construed in every case to require the personal presence of the supervising and controlling physician or osteopathic physician. Any physician or osteopathic physician who employs or directs a person certified under part II of this chapter to provide emergency medical services, or a physician assistant, shall retain full professional and personal responsibility for any act that constitutes the practice of medicine when performed by the certified person or physician assistant;
(5) Prohibit automated external defibrillation by:
(A) Any first responder personnel certified by the department of health to provide automated external defibrillation when it is rendered under the medical oversight of a physician or osteopathic physician licensed in this State; or
(B) Any person acting in accordance with section 663‑1.5(e); or
(6) Prohibit a radiologist duly licensed to practice medicine and provide radiology services in another state from using telemedicine while located in this State to provide radiology services to a patient who is located in the state in which the radiologist is licensed. For the purposes of this paragraph:
"Radiologist" means a doctor of medicine or a doctor of osteopathy certified in radiology by the American Board of Radiology or the American Board of Osteopathy.
"Telemedicine" means the use of telecommunications services, as that term is defined in section 269-1, including real-time video conferencing-based communication, secure interactive and non-interactive web-based communication, and secure asynchronous information exchange, to transmit patient medical information, such as diagnostic-quality digital images and laboratory results for medical interpretation and diagnosis, and deliver health care services and information to parties separated by distance.
(c) Nothing in this chapter shall prohibit
healing practices by traditional Hawaiian healers engaged in traditional [Native]
native Hawaiian healing practices, [both as] recognized and
certified as such by any kupuna council convened by Papa Ola Lokahi. No person
or organization involved with the selection of kupuna council members, the
convening of a kupuna council, or the certification process of healers under
this subsection shall be sued or held liable for any cause of action that may
arise out of their participation in the selection, convening, or certification
process. Nothing in this chapter shall limit, alter, or otherwise adversely
affect any rights of practice of traditional [Native] native
Hawaiian healing pursuant to the Constitution of the State of Hawaii.
(d) A physician or osteopathic physician who possesses a valid unrevoked license or a limited temporary license in good standing under this chapter and applicable rules shall not be deemed to be engaged in the practice of law when providing services within the scope of the physician or osteopathic physician's license or temporary license."
SECTION 4. Section 464-2, Hawaii Revised Statutes, is amended to read as follows:
"§464-2 Licensing of practicing engineers, etc. (a) In order to safeguard life, health, and property, no person except those exempted by sections 464-3 and 464-5 shall practice professional engineering, architecture, land surveying or landscape architecture in the State unless the person is duly licensed under this chapter.
(b) A person practicing professional engineering, architecture, land surveying, or landscape architecture who possesses a valid unrevoked license in good standing under this chapter and applicable rules shall not be deemed to be engaged in the practice of law when providing services within the scope of the professional engineer, architect, land surveyor, or landscape architect's license."
SECTION 5. Section 466-5, Hawaii Revised Statutes, is amended to read as follows:
"§466-5 License of certified public accountant. (a) A license and a permit are required to practice public accountancy. The board may license and grant the designation of "certified public accountant" to any person who has met the following criteria:
(1) [Attained] Has attained eighteen
years of age;
(2) Possesses a history of competence, trustworthiness, and fair dealing;
(3) [Educational] Satisfies the educational
requirements of this section or section 466-5.5;
(4) [Experience] Satisfies the experience
requirements of subsection (d);
(5) [Examination] Satisfies the examination
requirements of subsection (e); and
(6) [Paid] Has paid the appropriate
fees and assessments.
(b) The educational requirement for a license shall include a baccalaureate degree conferred by a college or university recognized by the board and:
(1) Completion of not less than thirty semester hours of study in addition to those semester hours required for a baccalaureate degree. The baccalaureate degree and the thirty semester hours of additional study shall include a minimum of eighteen semester hours of upper division or graduate level accounting or auditing subjects. The content of the additional qualifying hours of study shall be determined by rules adopted by the board pursuant to chapter 91; or
(2) If the applicant has a minimum of eighteen semester hours of upper division or graduate level accounting and auditing subjects, the applicant may elect to replace the thirty semester hours with an additional thirty months of professional experience in a public accounting practice. This experience shall not be credited toward the experience requirements in subsection (d).
(c) A person shall be exempt from the requirements in subsection (b) or section 466-5.5 if that person:
(1) Holds a current license as a public accountant under section 466-6; or
(2) Holds, and has continued to hold, a valid comparable certificate, registration, or license of certified public accountant of another state for a period of not less than ten years preceding the date of the person's application under this section, and has been in active practice of public accountancy in one or more states for a period of not less than five years preceding the date of the application.
(d) Each applicant shall present satisfactory evidence in the form of a certified statement from present or former employer(s) that the applicant has met one of the following experience requirements for license:
(1) Completion of one thousand five hundred chargeable hours in the performance of audits involving the application of generally accepted accounting principles and auditing standards earned while in public accounting practice; or
(2) Completion of two years of professional
experience in [public accountancy practice] the practice of public
accountancy as defined in section 466-3. Completion of experience in
private or government accounting or auditing work, deemed by the board to be
equivalent to professional experience in [public accountancy practice] the
practice of public accountancy as defined in section 466-3, may be
substituted for all or part of the two years of professional experience in
public accounting practice. The nature, variety, and depth of acceptable
private or government accounting or auditing experience shall be defined by the
board in its rules.
(e) The examination required [to be passed]
for licensure shall test the applicant's knowledge of the subjects of
accounting theory, accounting practice, auditing, and other related subjects as
the board may specify by rule. The board shall prescribe the methods of [applying]
application for and [conducting] conduct of the
examination, including methods for grading papers and determining [a] the
passing grade required [by an applicant] for a license; provided that
the board shall, to the extent possible, [see to it] ensure that
the methods of grading [of] the examination and the passing [grades]
grade required for a license are [uniform] in accord with
those applicable in all other states. The board may use the Uniform Certified
Public Accountant Examination and Advisory Grading Service of the American
Institute of Certified Public Accountants[,] and may contract with third
parties to perform the administrative services with respect to the examination
as the board deems appropriate to assist it in performing its duties herein.
(f) The board may allow an applicant to sit
for the Uniform Certified Public Accountant Examination, if the applicant has
met at least one of the following[:] qualifications:
(1) Baccalaureate degree in accounting conferred by a
college or university acceptable to the board; [or]
(2) Baccalaureate degree with a major in a subject other than in accounting, plus eighteen semester hours of upper division or graduate level accounting or auditing subjects, conferred by a college or university acceptable to the board; or
(3) Baccalaureate degree or its equivalent in accounting, conferred by a college or university outside of the United States, and submission of a letter of acceptance from an accredited United States college or university to its advanced degree program or an educational equivalency report prepared by an evaluator approved by the board.
(g) The board shall prescribe the terms and conditions under which an applicant who has taken the examination prescribed in subsection (e), but who has not satisfactorily completed the examination, may be given credit for any part thereof that the applicant has satisfactorily completed. The board may also provide a specific length of time for an applicant to apply for reexamination.
(h) A person who passed the Uniform Certified Public Accountant Examination under the laws of another state may be exempted from taking the examination required pursuant to subsections (a)(5) and (e). The board shall prescribe the methods and requirements for exemption from examination requirements. The board shall prescribe the methods and requirements for exemption for the holder of a valid comparable certificate, registration, or license and a degree from a foreign country.
(i) A person who, on January 1, 1974, holds a license of certified public accountant issued under the laws of this State theretofore existing shall not be required to obtain an additional license of certified public accountant under this chapter, but shall otherwise be subject to all the provisions of this chapter; and the license theretofore issued shall, for all purposes, be considered a license issued under this chapter and subject to the provisions herein.
(j) Licenses shall be effective for a period not exceeding two years and shall be renewable biennially on or before December 31 of every odd-numbered year upon application to the board.
(k) The board may renew the license of a certified public accountant who completes a renewal application and fulfills the following requirements:
(1) Holds a valid and current license; and
(2) Paid appropriate fees and assessments.
(l) Failure to renew a license on or before December 31 of every odd-numbered year, shall constitute a forfeiture of license. Continued practice in public accountancy without renewing or restoring a license and permit shall constitute unlicensed activity. Any person engaged in unlicensed activity shall be subject to sections 466-9, 466-11, 487-13, and 26-9.
(m) The board shall specify the method and requirements of application for restoration of a forfeited license. The date of restoration of the license shall be the date of board approval of the restoration. Restorations shall not be retrospective.
(n) A certified public accountant who possesses a valid unrevoked license and a valid unrevoked permit to actively engage in the practice of public accountancy under this chapter and applicable rules shall not be deemed to be engaged in the practice of law when providing services within the scope of the certified public accountant's license and permit."
SECTION 6. Section 466-6, Hawaii Revised Statutes, is amended to read as follows:
"§466-6 License of public accountant. (a) A license and a permit are required to actively practice public accountancy. A person:
(1) Who has attained eighteen years of age;
(2) Who possesses a history of competence, trustworthiness, and fair dealing;
(3) Who was serving in the armed forces of the United States on June 15, 1955;
(4) Who was a resident of the Territory of Hawaii at the time of entering such service in the armed forces; and
(5) Who at the time of entering such service, met the requirements set forth in subparagraph (A), (B) or (C) of this subsection, shall, upon application to the board within six months after honorable discharge or release from such service, be licensed by the board as a "public accountant":
(A) Any person who held oneself out to the public as being engaged in the practice of public accountancy and who was engaged in the practice of public accountancy as the person's principal occupation, either on the person's own account or as a member of a firm, or as an employee of a certified public accountant, or public accountant, and was regularly assigned to accountancy engagements;
(B) Any person who was engaged in accounting or auditing work in the Territory of Hawaii as an employee of the United States, of the Territory, or of any county, in a position in grade GS-9 under the territorial classification schedule in effect on March 1, 1955, or the equivalent or higher grade; or
(C) Any person who was engaged in private accounting or auditing who has had not less than three years of experience in such work, or in public accounting, or both, and whose experience was of such a character and for a length of time sufficient in the opinion of the board to be substantially equivalent to three years of public accounting experience.
(b) Licenses shall be effective for a period not exceeding two years and shall be renewable biennially on or before December 31 of every odd-numbered year upon application to the board.
(c) A person who, on January 1, 1974, holds a license of public accountant under the laws of this State theretofore existing, shall not be required to obtain an additional license under this chapter, but shall otherwise be subject to all the provisions of this chapter; and such previous license shall, for all purposes, be considered a license under this chapter and subject to the provisions herein.
(d) A public accountant who possesses a valid unrevoked license and a valid unrevoked permit to actively engage in the practice of public accountancy under this chapter and applicable rules shall not be deemed to be engaged in the practice of law when providing services within the scope of the public accountant's license and permit."
SECTION 7. Section 467-7, Hawaii Revised Statutes, is amended to read as follows:
"§467-7 Licenses required to act as real estate broker and salesperson. (a) No person within the purview of this chapter shall act as real estate broker or real estate salesperson, or shall advertise, or assume to act as real estate broker or real estate salesperson without a license previously obtained under and in compliance with this chapter and the rules and regulations of the real estate commission.
(b) A real estate broker or real estate salesperson who possesses a valid unrevoked license under this chapter and applicable rules shall not be deemed to be engaged in the practice of law when providing services within the scope of the real estate broker or real estate sales person's license."
SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 9. This Act shall take effect July 1, 2009.
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INTRODUCED BY: |
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