The Law of Legal Services

In response to my post about the unauthorized practice of law, Andrew Perlman sent me a copy of his recent article, Towards the Law of Legal Services. This is an excellent piece, with several thoughtful insights. Andy suggests that, rather than continue fruitless attempts to define the "practice of law," we should identify the different legal services that consumers need, decide who should be authorized to perform each those services, and determine the appropriate regulation (if any) for those providers. This nuanced "law of legal services" would replace the binary "law of lawyering."

I like Andy's proposal for the reasons I explain below. I also explore the role that legal educators could--and should--play in achieving this reform.

Legal Services

The law touches all of us. Even law-abiding individuals perform law-related actions with some regularity. We sign leases and compute taxes. We create retirement accounts and designate beneficiaries. We sign complex contracts for cell phone service, car loans, and other matters. Few people consult lawyers before engaging in these tasks, but all could be considered "the practice of law."

To be clear, individuals are entitled to perform these tasks for themselves. Anyone can read and sign a contract, designate a beneficiary, or compute their own taxes. Questions of unauthorized practice arise only if an individual hires a non-lawyer to advise her on these matters. 

State courts and bar associations, moreover, have made peace with non-lawyers performing some of the tasks listed above. Accountants advise taxpayers; realtors and title agents assist with land transfers. In some fields, regulators have even allowed software to take the place of legal advice: TurboTax has helped me disentangle several provisions of the Internal Revenue Code--and, on at least one occasion, outperformed an accountant's customized advice.

Lawyers, however, still claim a vast amount of territory as their own. And, as mentioned in my last post on this subject, those claims burden individuals much more than businesses and other organizations. The latter clients can hire non-lawyer employees to address many of their law-related matters; individuals lack that option.

If non-lawyers can handle law-related work for businesses, why can't they do so for individuals--at least with appropriate licensing and regulation?

Are They Competent?

Lawyers and law professors resist the notion that non-lawyers can handle law-related work. That's natural: We're protecting both our economic turf and our pride in the work we perform. It's hard to believe that someone could do what we do without completing law school and passing the bar exam.

Our opinions certainly should inform the debate over deregulation of legal services. Lawyers have first-hand knowledge of the work they do, while law professors can speak to the kind of preparation offered in JD programs. We need to realize, however, that our perspectives are biased by the interests noted above. We need to remain open to evidence contradicting our natural bias.

The market offers strong evidence that non-lawyers are capable of performing many law-related tasks. If non-lawyer HR officers, contract managers, and compliance workers failed at their work, then businesses would replace them with lawyers. These functions are too important for businesses to ignore.

When performed for individual clients, similar work may require some licensing or regulation; information asymmetries are more common with individual clients. That, however, is a different question than whether non-lawyers are capable of performing law-related work. Clearly they are; organizations happily hire them for these tasks.

A Spectrum of Services

We can all think of some law-related services that should be reserved to lawyers. But that's the beauty of Andy's "law of legal services" approach; he invites us to examine each service individually, rather than labeling large swathes of work as law practice or non-practice.

Maybe non-lawyers can advise Medicaid applicants about options for sheltering their assets, but shouldn't create the trusts used for that purpose. Or maybe the non-lawyer can create those trusts under certain standard conditions, but would refer clients to a lawyer for special circumstances. It should be possible to design pathways that allow clients to obtain some law-related work from non-lawyers while consulting lawyers for more complex situations. That's how businesses employ non-lawyers so effectively for law-related tasks; they know how to integrate workers with different skill levels.

Remember that when I (or Andy) refer to "non-lawyers" performing certain types of law-related work, we're not referring to high school graduates. The phrase almost certainly refers to workers with at least an associate's degree. Most often, in fact, it would refer to college graduates with specialized education in a particular legal field and ongoing education in that area.

What's It Got to Do with Law Schools?

Law schools have at least four reasons to engage with this issue. First, society desperately needs more research on the effective delivery of legal services--including the pros and cons of non-lawyers serving those needs. Jim Greiner at Harvard has done some excellent work in this field, as have a few other legal scholars, but we need much more. For scholars interested in empirical or interdisciplinary research, this is one of the most promising--and important--areas of legal research today.

Second, law schools should use this opportunity to examine their own educational mission and pedagogies. What exactly are we preparing our graduates to do? Why do we believe that our current curriculum and pedagogies prepare them for that work? How could we do better? We can't know whether a JD is necessary to advise clients on Medicaid eligibility, draft a special needs trust, or any other law-related task until we think more deeply about what work a JD prepares graduates to perform.

We have decades of reports, articles, and anecdotes that criticize the manner in which law schools prepare their graduates. We also have decades of articles, speeches, and editorials defending that education. Some claims on both sides are thoughtfully documented, but there's a lot of ipse dixit. According to this literature, law school is either (a) perfect preparation for a life of leadership, critical thinking, and "thinking like a lawyer," or (b) a sterile exercise in intellectual gymnastics, with no relationship to actual law practice. It's time to determine more rigorously what our JD programs achieve--as well as what they could achieve if structured differently. 

Third, law schools should seriously explore the possibility of filling educational needs other than the JD and LLM. We tend to dismiss other types of education as too "technical" for our lofty faculty. But all law-related workers benefit from rigorous, thought-provoking education. Demand for traditional JD programs has dropped and may never return to its highest levels. Rather than admit poorly qualified students, schools could devote some of their resources to undergraduate, masters, or certificate programs that support law-related employment.

The barriers protecting the "practice of law," finally, will continue to erode. Corporations will continue shifting legal work to non-lawyers; legal service companies like LegalZoom will keep growing; courts will expand the self-help centers they have established for pro se litigants; and more states will follow Washington State's lead in licensing non-lawyers to perform some types of law practice. Earlier this month, the Utah Supreme Court preliminarily approved a program like the Washington one.

Legal educators face a choice: Do we want to be part of this movement, helping identify the fields in which lawyers practice and those in which others provide law-related services? Do we want to participate in educating both groups? Do we want to use our talents to expand access to legal services? Or do we want to continue jockeying for position on an island that loses land each year?

Comments

[Jojo]

DJM,

Thanks for engaging with the practitioners. If as one of the Chicago-area Anons noted in your prior post, a goal of law school is to train professionals, it's nice to see that some faculty are willing to ask, "how are we doing in meeting that goal?" What should legal services and law schools look like?

Imagine a music school where students are trained by lecture on theory of sound, composition 101, music theory, history of jazz, music in the modern world, and music and literature. The faculty proudly boast that students can think like the best musicians, but refuse to look at whether they can play and claim that it's not their job to ensure that grads and paying gigs bear some relationship to each other. It wouldn't be a very good system. That's where we are with law.

[antiro]

My experience with Sly is similar, but on the prosecution side, as far as assigning of the public defender are had (I always like when a Defendant comes in later, magically having raised money when the PD doesn't go along with their plan and says they want to "hire a real lawyer.").

A hastily scratched out "affidavit of assets and liabilities" is submitted and Defendants are asked if they have a job, or not even that sometimes (when obviously low-income Defendants are charged with serious felony charges with correspondingly high bonds). A decent amount of the time, at bond hearings, Defendants say they have job interviews in a couple of hours, or that they will lose their job if they miss one more day of work.

Are the affidavits ever checked (it's a felony if they lie) or are interviewers contacted (perjury as well)? The lies are expected, and tolerated, in the name of expediency, and the overburdening of the PD's office and the monetary loss to the defense bar (which goes beyond less money in Sly's pocket) is just another cost that is to be borne.

I'm kind of cynical at this point ("How do I apply for drug court?" asks the Defendant at his bond hearing who was caught with a sophisticated drug manufacturing lab), but honestly who is going to pore through all the affidavits and follow up with the "interviewers" and stuff.

Would it really be proper for the judge's clerks to inquire with bank accounts, income, and stuff (AFAIK affidavits don't contain a release so that court staff can verify bank accounts)? Would they refer that to prosecutors for perjury charges? Or would that be a contempt of court proceeding brought on the motion of the judge?

There are some free services that I have noticed cropping up or existing that I wasn't aware of where non-lawyers assist people in getting restraining orders and OPs where the people are basically giving legal advice but not technically.

[anon]

The music school analogy above is perfectly on point.

[Sy Ablelman]

Here is a thought. Overturning Gideon and abolishing public defender offices. In 1963, lawyers were a scarce commodity commanding top dollar for legal representation. Very few attorneys bothered with low fee criminal defendants. Today, the attorney market is grotesquely overstaturated. My colleagues and I, cheap attorneys,(or Schleppers in previous posts) have appeared in court for as little as $100. We are desperate for the work. I view the public defender's office as a Gub'mint intrusion into the private markets. It turns the free market on its head. Yes, the 6th Amendment provides the right to counsel, but not free counsel because one lives in a Walmart world with everyday low prices. The prosecutor is correct, many clients magically come up with money when they don't like the PD's deal....