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December 29, 2015


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Sy Ablelman

Us seasoned solos, small firms and neighborhood lawyers have been doing this work for decades. The key in hooking up clients to gub'mint programs is to network with case workers, social service providers and social workers. Any decent lawyer can just pick up the phone and make the appropriate referral. For instance, I do this for my criminal clients. It is called mitigation. No need to create a new layer of para professionals and further dilute attorney incomes. (Why attend law school? What's the point?) The problem as I see it is that newbies can't find legal work so they are "forced" into Solo work and don't know how to do this. Ask a newbie what DV and drug treatment programs are out there. Popping open the phone book or a Google search does not count. It takes years to develop this institutional knowledge.

Deborah Merritt

Nice try, Sy, but these are very different legal services. In my criminal defense clinic, we regularly get our clients into treatment programs: DV, alcohol, drugs, mental illness, shoplifting, anger management, you name it. But I've yet to meet a criminal defendant who would get a better deal by establishing a special-needs trust. It's a different line of work, and one that college graduates with specialized education could provide quite effectively. The clients who would benefit can't afford legal services, so there would be little loss to the legal profession.

Meanwhile, here's a neat trick one of our clients pulled: She got herself into a booked-up crack rehab program by chugging a few beers and showing up at the "emergency intake" office. They took her in as an alcoholic and then let her transfer internally to the crack program. Pretty clever--although her knowledge simply underscored the fact that she'd been in and out of this rehab unit several times.

Sy Ablelman

Is it that clients can not afford to pay for legal services or do they just REFUSE to pay and want it free? My experience is the latter and I am a cheap attorney. I have been told several times by family members of prospective clients that they will just "go with the Public Defender" because I can't promise a "better result" even though they are forking over a fee.

In terms of an ORBA Special Needs Trust, those are typically drafted by a family member Guardian of the Estate/Person. Or a Public Guardian, a Guardian of last resort. Those folks are typically volunteer attorneys appointed by the Governor, at least in Illinois.


Ask students what they want. You'll find that they want their professors to not only be respected researchers but also knowledgeable about the practice of law.


Sorry, but the false flag comments on these threads are basically making the threads a parody of themselves: which is no doubt the intent. The fact is, however, that some folks are skilled and persistent enough to accomplish this.

I am an anonymous commenter: I've been called just about every name in the book of profs who feel insulted by anyone who dares to challenge them. I haven't been in the least dissuaded from posting by these outbursts.

But, this tactic - posting comments that are in form sincere but in reality complete shams intended to undermine the discussion in this forum - is enough to convince me to stop reading these threads. Again, of course, this is the intent.

Who "wins" when folks are clever and twisted enough to play the game in such a devious way? They do, of course!

Where is the comment policy, folks? Will there ever be such a policy? In the final analysis, it isn't being called a coward, or all the other hateful epithets hurled by unhinged profs that will bring down anonymous commenting here in the FL.

It may just be the dishonest ones among us who have figured out a strategy that just might work.

Well done!


anon -

It would help if each "anon" picked a screen name and stuck to it. I understand (from personal experience) why many posters here do not want to use a singular screen-name, though the person behind what went on (doxxing, contacting employers, encouraging attacks on family, promoting the filing of ethics complaints) it is now pretty well a pariah in 2 academic communities (it helps that he was a ludicrously prolific sock-puppet, and threatener of defamation suits "my wife is a lawyer.") That person (whose name gets caught in filters here a lot) is perhaps the leading example of why profs need to read the ethics rules and learn a little about professional ethics.

Still, all the anons are a problem. Indeed some of the most ludicrous comments by profs are by anons - and one is forced to try the judge the difference between "Anon" and "anon." I certainly can't keep them straight (and since I don't have the time to proofread my posts) I am not going to try.


This is a complex and messy problem and one that is present in the UK - so it might help to look there for an example.

Unauthorised practice of law in the UK is a pretty nonexistent. The Solicitors Act 1974, §20-23 provides that certain matters affecting property and preparation of certain legal documents can only be carried out by a solicitor (i.e., by an Officer of the Supreme Court of England and Wales.) A few other laws reserves certain matters to barristers and solicitors. The higher courts have a system of rights of audience - barristers have them more or less automatically (there used to be some distinction between the rights of QC/SC/KC and junior barristers) while solicitors can get higher rights of audience and increasingly do so.

Outside that it is somewhat of the wild west. Maintaining a practicing certificate in the UK and Ireland can be pretty expensive - the main reason being the mandatory PI cover which frequently costs north of $10-20,000 and is usually several thousand. In Ireland to retain a practicing certificate if you are not part of the BigLaw insurance scheme means paying a large amount into a compensation fund for clients whose solicitors ran away with the client account. The result of this has been the emergence of a class of self-called "legal executives" who are typically solicitors who could not or did not want to pay for PI (they may have received a so-called "f*ck-0ff" quote from the insurers, which is common if they had no practice and claim history (former junior solicitors and in-house tend to experience this - it's harder than ever to set up a new firm.) Some though just have a BL and never apprenticed/pupilled.

In employment the legal system is complex - much more in Europe than in the US. HR directors in companies abound - some are incompetent, other very good, but generally a good few get into messes that lead you to wonder, did they read the law on employment?

Conveyancing (property transactions) used to be the bulk of solicitors' revenue - and in England, Wales and Ireland it was on a fixed fee basis set by the law society - based on transaction value. This was ruled anticompetitive years ago and "conveyancers" who are non lawyers took over a large chunk of the business, while estate agents (realtors) and mortgage banks developed their own captive law-firms. This has lowered costs, but some of the work has not been pretty and there are constant conflict of interest issues.

Then there are McKenzie friends who are allowed to assist a pro se party ("a litigant in person") in a court of law in England and Wales, who do not need to be legally qualified, but they are allowed to change fees - and not required to have PI insurance. The quality is highly variable - some are good, many disastrous.

One of the basic issues is that, at least in theory, the bar exam is supposed to be an assurance of quality. Frankly, meh ... a surprising number of utter idiots qualify as lawyers. Moreover, while wishing the profession we have a fair idea who they are, there is somewhat of an idea that you do not speak ill of other lawyers, even the blithering incompetents, or those who rip off clients (we are a bit like law professors that way (except that it seems to be OK to be nasty about Campos.)) Indeed one area of practice that is remarkable is arbitration - which, because it happens behind closed doors, means that clients genuinely cannot assess (unless they have a lot of arbitration cases) whether their lawyer is good or awful. I have seen cases we won due in part to opposing counsel making a 'hames' of it presented on that counsels website and in promotional materials (without client names) as a positive reference for the firm (indeed one would think they were victorious.)

In any event opening up legal practice to non-lawyers has been somewhat of a mixed bag for clients. Frankly, at the "main street" and courthouse level, competition in the US is substantial enough that legal advice is as cheap as it can be in terms of the work and knowledge involved. I cannot see it getting cheaper, but I can see a lot of clients getting ripped off by people who are not subject to any real sanction or consequences.


while within the profession


Prof Merritt,

We are numerous and cheap enough that I oppose lowering the bar to unlicensed practioners and jettisoning traditional law work to new classes of professionals. At the margins, your point is well taken.

An associate's degree offering in law might be useful to give students an introduction to a few legal concepts and to assist those who work in compliance roles. There are legions of bankers and financial professionals who would be well served by such undergrad classes or a yearlong associate's program in banking compliance. A paralegal certificate program would be useful too - 1 year course on litigation process, medical privacy, evidence use, real estate recording, bookkeeping, business org basics.

I sit here smiling, though, imagining a few of the old kingsfield wannabes from my old school trying to actually teach people how to do practical work.

Maybe it is a peculiarly of law school (and lawyers are peculiar) but you don't often see law faculty teaching a law class to the B-School students or to the undergrads. I don't know why that is. Business schools typically have business law classes, but in my experience they are taught by practioners, who typically are alums. At Ohio State and similar schools, there likely would be a demand for a Law basics for health professionals 101 at the med/dental schools. But who could teach it? (Seriously)


Law faculty sometimes teach undergrads or students in other graduate schools, but not often. The biggest obstacle is that law professors tend to be paid more than other faculty. If a law professor teaches a course for another academic unit, that unit will have to pay back the law school at a higher rate than if it covered the course another way.

Sy Ablelman

Anon at 12:46 is correct. When I was in law school, I enjoyed it when my Property professor brought in a recent published case of a local car dealer that was sued when a thief broke in to a customer's Dodge and ripped off the tape player and the change in the ashtrays. (cars back then didn't have cup holders). We had a discussion of constructive possession, car keys, bailments and exculpatory clauses. These are the types of matters most of us small law lawyers see everyday. I recently sent my Torts professor a Law Bulletin case note of somebody who sued a Wendy's after a car crashed through the plate glass window. Why sue the Wendy's? They were insured of course and the Plaintiff's attorney was concrete barriers.

JoJo is also correct. He noted we are cheap and numerous. I referred to myself as a "Schlepper" lawyer in previous posts. Read and Think: Cheap. Clients price shop and I find myself competing with gub'mint subsidized lawyers. Imagine if Walllyworld had to compete with GOVMART.

Deborah Merritt

Anon at 2:05, I find some of Sy's comments repetitive or distracting, but others contain useful information that other commenters don't provide. It's a lot like the gunner who is always raising his hand in class, or the colleague who makes the same point at every faculty meeting: I try to take what's useful and ignore the rest.

On this one, Sy is well informed on criminal defense, but not as much on special-needs trusts. In Ohio (where I live) and California (where a needy relative lives) these are very much handled by lawyers who charge fees. The California lawyer charged about $5,000 to create a trust that included just $15,000 of assets--and, of course, the fee came from the trust. I see plenty of ads from Illinois lawyers to create special-needs trusts, so I think lawyers handle at least some of this work in that state as well--and I doubt there are enough volunteers to go around.

It's possible that special-needs trusts should be created by lawyers, but that other Medicaid-related work doesn't require a JD. What we need is a thoughtful examination of different types of work--with decisions about each one that will benefit prospective clients.



The biggest concern with special needs trusts is that the trustee will drain of otherwise misuse the trust funds. The problem with lawyers is that they charge hourly rates for what are often minor tasks and check-writing, but the main concern with non lawyers is the lack of a disciplinary and supervisory system (and or PI Insurance and compensation.) It's a Catch 22 situation.

Deborah Merritt

I agree with J.G. that budgets impose a major impediment to law professors teaching undergraduate courses. Especially in public universities, where undergrad tuition is much lower than law school tuition, law schools can lose money when a professor teaches undergrads rather than law students.

But I think status and exclusivity have also been barriers. Law schools pride themselves on being "graduate schools" and view undergraduate education as lower status. And like other professions, law depends upon protecting its knowledge and skills. If law professors teach undergraduates how to read, write, and interpret contracts, will those students hire lawyers for that work later in life?

This, though, is changing. Ric Simmons and I, who created a new type of Evidence text for law students, are writing a text for undergrads. It is aimed both at criminal justice majors (future police officers, probation officers, etc.) and at the more general liberal arts audience. We would love to teach an undergrad course in this area and we may be able to do so once the book is done.

Meanwhile, several prominent law professors have created MOOCs for college students and the general public. Charles Fried (Harvard) has one on contracts that will start in January.

I have argued before that law schools should transfer some of their educational resources to colleges, and I hope to return to that theme here.

Deborah Merritt

The public defender issue raised by Sy is a troubling one. My criminal defense clinic takes cases from the PD pool, and our prosecution clinic (in a different county) often negotiates with public defenders. In both clinics, we often scratch our heads over why a particular defendant qualified for a government-paid attorney. There are many who do: poverty is real and often combines with crime (or, at least, getting caught and prosecuted).

But there are many individuals who seem well above the financial line yet obtain a free lawyer. This burdens PD offices, which are already struggling, while making it harder for private defense lawyers to survive.

I don't know why this problem persists: perhaps courts simply aren't willing to enforce the qualification lines?



I see what you're suggesting at 12:18, but you're not thinking about it radically enough. I'm envisioning a Reign of Terror on the Langdellian legal system so celebrated since 1890. Imagine starting from scratch. What would it look like? I propose:

For students at law schools:
- 1L Year, largely the same as current socratic system, but with more writing
- 2L and 3L Years, upper level lectures, but way more writing and specific practice-style classes, some of which resemble the best CLEs available (deposition workshops, drafting sessions, advanced admin law, running a practice lectures, accounting and small business entrepreneurship for lawyers, etc., etc., etc.).

For other students:
- A Class or two on substantive law to complement other programs (crim justice/medical or dental schools/B school/conlaw in poli sci or constitutional history).
- Associates or certificate classes in compliance or other law-related fields.

For the law faculty:
- Faculty expected to teach 2/3 or 3/3 loads.
- Undergraduate classes or cross-listed classes at other university departments count too toward the 2/3 or 3/3 load.
- Faculty research expected to be related to law and not primarily focused on social science. Bonus points if it is actually statutory and regulatory research. Extra bonus points if such research is at the state level. Extra special bonus points if the article or essay is under 30 pages long and original.
Faculty encouraged to do nontraditional teaching to count toward teaching load (e.g. teaching crim pro and/or state criminal statutes at the police academy).
- Teaching the new compliance associates program counts toward teaching load.
- Faculty will be professional school professors, but there will be more emphasis on teaching, and more emphasis on teaching in practice. Socratic faculty may remain the more prestigious members of the old guard, but will be relatively fewer in number vis-a-vis the overhauled model. If they like, they can whine about the new model and style themselves as the prestigious real law faculty from the good old days.

Deborah Merritt

Jojo, I've actually suggested some of the same things. Here are a few ways in which I differ or would build on what you say--with details reserved for future posts.

(1) The first year needs some overhaul as well. The basics are fine, but students should have some contact with clients or simulated clients.

(2) The upper level needs more clinical work in addition to the lectures and simulations you suggest. Some of this can be done through externships, but each student should take one in-house clinical course (which is the best way to guarantee real connection with a client as well as time to reflect on what the heck one is doing).

(3) A 2/2 teaching load is plenty heavy, and more than what most law faculty currently handle. If you want time for student writing, feedback, and other good teaching, it's hard to go above that. I think you'd have trouble finding 2/3 or 3/3 teaching loads in other college or university departments.

(4) There is much to be said about faculty research. Much of the problem, I think, is that most research (as well as most of our teaching) focuses on changing the law, while most practitioners need help figuring out and applying the law as it stands. Both types of scholarship are necessary, and I think we can find a way to do both. Meanwhile, I wouldn't rule out social science as a category: As I suggest in the post, we need some good empirical work to understand what types of legal services can be performed by non-lawyers and which types need a full JD. The best research in that area probably would pair a law prof and a social scientist.

In the "walk the talk" category, Ric Simmons and I created our "uncasebook" on Evidence to support some of the goals you mention. It teaches with examples, text, simulations, and problems--and with no appellate opinions. It has proven pretty popular with both professors and students, overcoming the initial professorial reaction of "but what will I do in the classroom if the students understand the law just from reading your text"? It's now in its third edition, and West is building a series around the idea.

Thanks for all the good, provocative ideas!



I like your proposals. My word, evidence was dreadful to learn via the case method. With few exceptions (constitutional confrontation, etc.) evidence is a class of rules, like the tax code. It's trial-level law, and the few appellate cases you get are largely useless or ancient. Every trial judge I know uses hornbooks on evidence anyway, and good luck with an "indicia of reliability" argument on the fly to a hearsay challenge at trial. Your text sounds great.

Faculty research is misdirected, but could be really, really good and really, really useful. Sadly, to be both of those things, it must be really, really detailed and really, really boring. There is virgin paydirt out there for all law faculty who dare to get their hands dirty, but it is hard and boring work.

By my back of the envelope calculations, roughly half of all published legal research could contain an abstract that begins in one of two ways: (1) "The Supreme Court of the United States erred . . . "; or (2) "The Supreme Court of the United States correctly held [x], but [select one: for the wrong reasons/more needs to be done/ignored some other unrelated legal concept) in doing so." Coincidentally, almost all newspaper sports columns or political columns have similar flaws. "The Yankees erred in . . ." or "The Yankees are making good personnel moves, but . . . " or "President Obama ignored . . . " or "Congress correctly adopted . . . "

Sy Ablelman

Professor Merritt,

I am glad you called me a gunner. I have been called a hell of a lot worse by my clients. I just like participating in these discussions.

In many many cases, public defenders are appointed with little heed to finances. In many cases, a financial examination by an overworked high volume lower court trial judge is cursory at best. Are you working? Why because the judges have a legitimate interest in moving the call, less it gets backed up to next Sunday. Imagine if 200 criminal defendants, every single day, were told to hire a lawyer and then given a date in 4-6 weeks to come back with that lawyer. And then they returned to court without a lawyer because they either refuse to pay 5 Bills (why should I pay, I am INNOCENT) or the can't pay. It's a lot easier to dispose of cases with the courtroom staff, namely the Public Defender and just get on with it.


Gunner Horschack Sy

Deborah Merritt

That's a great explanation, Sy--thanks for offering it. And I was hoping you would like the gunner moniker. Go get 'em!

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